BANCROFT 
LIBRARY 

•o 

THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


San  Francisco.  No. 


IN    THR 


Court 


OF   THE 

STATE   OF   CALIFORNIA 


N.  J.  STONE, 

Plaint 'iff  and  Respondent 


vs. 


H.  H.  BANCROFT, 

Defendant  and  Appellant 


TRANSCRIPT  ON  APPEAL 


E.   J.   McCUTCHEN, 

Attorney  for  Appellant 


Filed  this day  of  May,  1895 

T.  H.  WARD,  Clerk 
By  Deputy  Clerk 


"lamtiff  and  Respondent,  v.  H.  H.  BANCROFT 
fendant  and  Appellant. 

?Cai  frnm  thC  Snperior  Court  of  Contra     Costa    County— John     H 


CT  & 

For    Respondent— Reddy,    Campbell   &   Mets^n. 

This  action  is  brought  to  recover  upon  a  written  contract  for  se^ 
|   salary,  at  the  rate  of  $350  per  month,  commencing  Septem  j 
The  plaintiff  obtained  a  verdict  and  judgment  for  the  f ' 
claimed,  and  the  defendant  appeals  from  the  judgment  a 
bis  motion  for  a  new  trial.     This  court  in  departme 
^  such  judgment  and  order  (24  Cal.  Dee    696)    a  i 

eZl  *'M  *"***'     ^  ^^  ^°n  which  this  ac*™  is  co 
enced  is  the  same  one  involved  in  a  former  action  brought  bv  tk 
plaintiff  against  this  defendant  for  salary  for  a  former  period  of  sV 
i  vice,  in  which  plaintiff    recovered    judgLnt,  which    iuTmenf  w- 
,  affirmed  by  this  court.     (Stone  v.  Bancroft,  112  Cal.  652.)     We  as 
.convinced,  upon  a  more  thorough  examination  of  the  record    that  i 
jthis >  court^dhemuo  the  views  expressed  in  its  decision  in  [he  forme 

affirmed.     The  only  difference 
former  case  there  were  some 
contract  during  a  small  por- 
rtiile  there  was  no  work  at  all 
in  this  action.     That  differ- 
rule  doAvn  in  the  former  case 
fat  portion  of  this  time  plain- 
ps  ready  and  willing  to  work 
1  no  work  was  offered,  and  he 
ict^was  in  full  force,  and  his 
Upon  this  branch  of  the 
»ressed  in  the  commissioner's 
inry  were  warranted  in  their  i 
mtial  breach  of  the  contract' 
an  requested  by  appellant,  to, 
r  engaged  in,  directly  or  in- 1 
g  business,  the  verdict  must! 

••—  ^  1S  als°  ^erv  clear  that 

!  Civil  Code,  noted  in  the  Smm^^^^^  section  1980  6f  the 

maintained  on  the  contract  bv  «„  ^^^P^L  actlon    cai  'be) 

after  the  expiration  of  two 

commenced.     It  was  not 

asva  defense,  but  we  are 

case  at  bar.     The  statute  te^tTn 

may  not  recover  on  the  contract  for 

expiration  of  two  yeans.     The   lanS 

cannot  be  enforced  against  -t!>e  emvl 
was  manifestly  for  his  protection    n 

eaves  him  at  liberty  to  proceed  Tndir 
last  sentence  of  the  section 
tion,  that  for  all  services  rej 
the  employee  must  brino-  his 
serted  in  the  statute  for^the  prote( 
employee,  disregarding  the  contract 
able  value  of  his  sr  ' 

employer  may  avail  „ 
sation,  as  presumably 


*          * 


the 

t0  plead  this  «tatute 
ls-  not  aPPH<*ble  to  the 
that  the 

afte 
GXplieit  that  ^ 

tW°  years'  and  ^ 
Was  enacted.     It 

-^  S°  eleets' 
•reh?8  in  his 
eXpl/atl°n  of  two 
Ma*<?"»  ^^,  was  in- 
^.employer,  so  that  if  the 

hlS  action  for  «ie  reason 

?  ^  ^ht  to  "« 
C°Dtraet  as  to 

- 

,  ,°'"eaWe  against 


deceased.     The  r^ST  estate       ^ 
ministration,  and  the  payment  c 
in  equal  proportions.     This,  thei  . 
a  voluntary  defective  conveyance  t\ 
to  correct  and  reform  the  conveyariv 
is  unprovided  for  by  deceased.     If  thr 
chaser  for  a  valuable  consideration,  if \ 
against  the  heirs  and  reformed  so.  as  to  j^ 
tended  to  be  conveyed.    But  the  legal  title  !• 


a  decree 
is  now  <j 

(jU  c«ttKuiV    £>f«uly,  o.  j.,'  j-.^i6an,  J. 
Cornprring  opinion  by  Angellotti,  J.  1 

i 
Mh 

deceased 

diss  nt:     MfFarland,  L^           _ 

rts  ( 

S    F   23lk^R£ese  /^/1Q  $y   the 

cases  wh 

Court      R2EEW*>*i-S-S  r- 

)iTectrv 

executioi 

S   F  2398—  Stone  v  Bancroft.      Ine 

arty  seV 

must  sta 
whom  he 
the  cour 

judgment  heretofore  entered  herein  is 
vacated,  and  cause  ordered  submitted 
to    the    Court    in    bane,    pursuant    to 
Subd.  2  of  Rule  XXVIII.     Beatty,  C. 

aat  of  thV 
he  law  musV 
he  equities  oK 

are,  at  1$ 
and  nati 

J.     Angellotti  J.,  Shaw  J. 
S  F  2873-2874—  Estate    of  (  Wicker- 

b  is  the  dictate\x 
wife  dying  withe. 

should  go  in  part  to  her  surviving  husband.  This  was  certam\ 
view  of  the  legislature  in  enacting  our  statute  of  distributions^ 
in  such  case  it  makes  the  husband  the  owner  of  one-half  the  pro 
erty.  If  this  be  so,  then  equity  would  say  to  appellant  that  she  should 
allow  the  respondent  his  one-half  the  property.  A  court  of  equity  in 
terferes  to  correct  a  mistake  in  a  written  instrument  only  in  further 
ance  of  justice,  and  to  prevent  fraud  or  some  injustice.  In  this  case, 
by  refusing  to  correct  the  deed,  no  fraud  nor  injustice  is  done  to  ap 
pellant.  She  has  lost  nothing,  because  she  paid  no  consideration  for 
the  deed.  She  has  been  deprived  of  nothing  the  law  would  otherwise 
give  her.  It  is  true  the  intention  of  the  grantor  is  not  carried  out,  but 
it  would  have  been  equally  true  if  an  attempt  had  been  made  to  make 
a  will  and  it  had  been  defective  in  a  vital  part.  The  court  could 
not  reform  a  will  nor  make  it  so  that  it  would  comply  with  the  law. 
In  this  case  the  deceased  intended  to  convey  the  property,  but  she  did 
not  do  so.  That  intention  will  not  now  be  carried  cut  in  favor  of  one 
who  paid  nothing  for  the  conveyance,  and  against  a  lawful  heir. 

The  above  principles  are  supported  by  an  unbroken  line  of  author 
ities.  It  was  long  ago  said  in  Dawson  v.  Dawson,  1  Dev.  Eq.  101 :  "The 
old  beaten  ground,  long  since  occupied  by  the  courts  of  equity,  not  to 
aid  voluntary  conveyances,  seems  to  render  any  reasons  that  might  be 
urged,  to  show  that  the  bill  should  be  dismissed,  both  trite  and  un 
necessary.  ' ' 

It  is  said  in  Story  on  Equity  Jurisprudence,  Vol.  1,  Sec.  177:  "For 
the  same  reason  equity  will  not  supply  a  surrender  or  aid  the  defective 
execution  of  a  power  to  the  disinheritance  of  the  heir  at  law. ' ' 

The  following  cases  directly  support  what  has  been  said :  Henderson 
et  al.  v.  Dickey  et  al.,  35  Missouri  120 ;  Hout  v.  Hout  et  al.,  20  Ohio 
119 ;  Powell  et  al.  v.  Powell,  27  Geo.  38 ;  Powell  v.  Morisey,  98  N.  Car 
olina  426;  Shears  v.  Westover,  110  Mich.  505;  Else  v.  Kennedy,  57 


^H 

ulock,  31  N. 

pHef,  do  not  attempt  to  meet 

.  rely  upon  Section  3399  of  the 

/hat  the  construction  or  decision 

abject,  because  our  Code  has  clearly 

,  rule  is  changed  by  the  legislature  it 

and  fully  and  completely  governs  and 

bar." 

.-'  ^vides  that  in  ease  where  by  reason  of  a  mu- 

jontract  does  not  truly  express  the  intention 

Sfrbe    revised  on  the  application  of  the  party  ag- 

*t  the  word  "may"  means  must,  it  does  not  follow 
V;Vt  must  be  revised,  except  upon  the  application  of  the 
.-?>i'  and  in  accordance  with  the  rules   of  equity.     The 
<id  in  the  sense  of  the  statute  means  one  whose  pecuniary 
Affected  by  the  mistake.     It  would  include  one  who  paid 
.rand,  which,  by  mistake,  was  omitted  from  the  deed.    It  does 
Ade  appellant,  who  is  not  aggrieved,  except  in  the  sense  that 
•^AY  grieve  that  she  did  not  get  the  property.     In  that  sense  the 
js^ondent  might  be  said  to  be  aggrieved  because  the  property  was  not 
^ydveyed  to  him.     But  the  section  was  never  intended  to  overthrow 
vvell  settled  principles  upon  which  equity  has  been  administered  under 
the  common  law.     The  section  certainly  does  not  contain  all  the  law 
with  respect  to  the  correction  of  mistakes  in  courts  of  equity.     It  is 
only  where  it  clearly  appears  that  a  long  established  principle  is  in 
tended  to  be  overthrown  that  the  court  will  give  such  effect  to  a  statute. 
•Mills,  Estate  of,  v.  Mills  et  al.,    filed  September  15,    1902,    24  Cal.  Dec. 
293. 

It  follows  that  the  judgment  should  be  affirmed. 

COOPER,  C. 
"We  concur: 

HAYNES,  C. 
GRAY,  C. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  is 
affirmed. 

VAN  DYKE,  J. 
HARRISON,  J. 
GAROUTTE,  J. 


S.  F.  No.  2398— Department  One.     December  18,  1902. 

N.  J.  STONE,  Plaintiff  and  Respondent,  v.  H.  H.  BANCROFT,  De 
fendant  and  Appellant. 

CONTRACTS— PERSONAL  SERVICES— PREVENTION  OF  COMPLETION  BY  EMPLOYER— 
EEMEDY— SECTION  1980,  C.  C."— Where  a  contract  for  personal  services  for 
a  definite  term  of  years  at  a  monthly  salary  is  made,  and  there  is  nothing  to  show 
that  the  employer  discharged  the  employee,  although  the  latter  was  prevented  from 
doing  the  work  contracted  for  during  the  period  in  question,  by  the  employer,  the 
remedy  of  the  employee  is  to  sue  for  the  compensation  agreed  upon,  not  for  dam- 


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CALIFORNIA  DECISIONS.  697 

ages  for  breach  of  contract.  The  fact  that  the  employee  for  a  portion  of  the 
time  he  was  prevented  from  working  under  the  contract  engaged  in  other  work 
is  not  a  breach  of  the  contract  on  his  part.  Where  such  a  contract  provides  for 
employment  for  ten  years  at  a  certain  amount  per  month,  the  monthly  salary  is  due 
at  the  end  of  each  month,  and  payment  is  not  postponed  to  the  end  of  the  ten 
year  period.  Section  1980  of  the  Civil  Code  is  no  defense  to  an  action  on  such  a 
contract. 

Appeal  from  the  Superior  Court  of    Contra    Costa     County — John    Hunt, 
Judge.  !t 

For  Appellant — Edward  J.  McCutchen;     Page,    McCutchen    &    Eells, 
Page,  McCutchen,  Harding  &  Knight  of  Counsel. 

For  Respondent — Reddy,  Campbell  &  Metson. 

This  action  was  brought  to  recover  a  salary  of  $350  per  month  for 
seven  months  from  September  1,  1893,  to  April  1,  1894,  amounting  in 
the  aggregate  to  $2450.  The  plaintiff  obtained  a  verdict  and  judgment 
for  the  full  amount  claimed.  The  defendant  appeals  from  the  judgment 
and  from  an  order  denying  him  a  new  trial. 

The  action  is  based  on  a  written  agreement  made  between  the  parties- 
to  the  suit  on  August  20,  1886,  in  which  plaintiff,  Stone,  agreed  to  de 
vote  ten  years,  beginning  with  that  date,  to  the  publication 
and  sale  of  the  historical  works  of  defendant  Bancroft  at  a  monthly 
salary  of  $350,  and  defendant  agreed  to  employ  him  on  those  terms. 
Suit  was  maintained  for  a  former  period  of  service  under  this  same  con 
tract  and  the  judgment  in  plaintiff's  favor  affirmed  in  Stone  v.  Ban 
croft,  112  Cal.  652.  Reference  is  here  had  to  that  case  for  a  fuller  state 
ment  of  the  contract  here  in  suit.  It  is  settled  by  that  case  that  the 
contract  is  one  for  personal  services  and  not  a  partnership  agreement. 

1.  It  is  contended  by  appellant  that  in  this  suit  the  plaintiff  has  mis 
taken  his  remedy,  that  the  defendant  discharged  plaintiff  from  his  ser 
vice  and  that,  consequently,  if  plaintiff  has  any  cause  of  action  at  all,  it 
is  one  for  breach  of  the  contract  and  not  one  for  services  under  the  con 
tract.  But  appellant  fails  to  call  our  attention  to  any  declaration  or 
other  act  of  defendant  which  amounted  to  an  unequivocal  discharge  of 
the  plaintiff  from  further  employment.  To  be  sure  it  appears  that 
plaintiff  was  prevented  from  working  at  all  during  the  period  covered 
by  the  present  suit,  by  the  defendant,  but  it  is  one  thing  to  prevent  a 
party  from  laboring  and  quite  a  different  thing  to  discharge  him  from 
all  further  employment. 

In  the  former  instance  the  contract  need  not  be  treated  as  broken, 
but  the  party,  though  he  has  performed  no  labor  under  it,  may  sue  on 
the  contract  and  recover  the  agreed  compensation.  In  the  latter  in 
stance  there  is  an  unequivocal  breach  of  the  contract  to  employ  for  a 
specified  time  by  the  employer,  and  the  suit  should  be  as  for  a  breach 
of  the  agreement  to  employ.  All  of  which  is  clearly  laid  down  and  il 
lustrated  in  Stone  v.  Bancroft,  supra.  The  same  principle  is  stated  in 
Dingley  v.  Oler,  117  U.  S.  490.  The  plaintiff  testified  that  he  was  not 
discharged  and  stated  what  was  said  and  done  to  prevent  him  from 
working,  and  on  his  evidence  the  jury  based  their  verdict  in  his  favor, 
and  thus  it  was  impliedly  found  that  he  was  not  discharged,  and  we 
think  the  evidence  warranted  the  finding.  If  the  defendant  desired  ta 
discharge  the  plaintiff  he  should  have  told  him  that  he  was  discharged. 


698 


CALIFORNIA  DECISIONS. 


Instead  of  doing  this  he  seems  to  have  adopted  a  course  by  which  if  he 
was  sued  for  a  breach  of  the  contract  he  might  plausibly  say,  '  '  You  have 
mistaken  your  remedy.    I  did  not  discharge  you";   and  if  on  the  other 
hand  the  suit  should  be  on  the  contract  he  might  say,  "You  should  have 
sued  as  for  a  breach  of  the  contract  for    I   discharged  you  and  thus 
broke  my  agreement."    Where  it  is  admitted  that  the  plaintiff  is  en 
titled  to  recover  in  some  form  of  action  this  court  will  not  be  overnice  in 
its  distinctions  as   to  what  form  should  be  pursued.     On  the  circum 
stances  presented  we  decline  to  interfere  with  the  judgment  on  any 
theory  of  mistake  as  to  remedy.    The  law  touching  this  point  is  clearly 
laid  down  in  the  former  case  of  Stone  v.  Bancroft,  supra,  and  need  not 
be  again  repeated.    The  evidence  showing  that  there  was  no  discharge 
is  fully  as  strong  here  as  it  was  in  that  case  and  there  it  was  conceded 
by  appellant  that  there  was  no  discharge,  but  it  was  contended  that 
Stone  had  withdrawn  from  the  contract  and  abandoned  the  employment. 
2.     The  evidence  tended  to  show  that  plaintiff,  during  a  small  portion 
of  the  period  covered  by  the  suit,  assisted  another  in  the  publication 
and  sale  of  a  medical  book  entitled  '  '  Femina,  '  '  and  it  is  contended  that 
this  was  a  violation  of  plaintiff's  contract  "to  devote  his  whole  time" 
to  the  historical  works  of  Bancroft,     It  appears  that  Stone  was  at  all 
times  ready  and  willing  to  fully  perform  his  contract  with  Bancroft  but 
was  prevented  from  so  doing.    He  was  left  then  either  to  remain  idle  or 
work  at  something  else.    This  work  did  not  "interfere  with  his  efforts 
on  behalf  of  the  said  History  Company.  '  '    Bancroft  was  in  no  way  in 
jured  by  Stone  working  at  something  else  when  he  was  not  permitted 
to  work  under  the  contract,  and  cannot  be  heard  to  complain  thereat. 
What  plaintiff  did  in  connection  with  the  "Femina"  publication  did 
not,  therefore,  constitute  a  substantial  breach  of  his  contract  with  appel 
lant,  and  the  jury  were  warranted  in  their  conclusion  to  that  effect. 
Herman  v.  Little-field,  109  Cal.  430.  )    This  same  question,  on  practically 
the  same  evidence,  was  passed  on  adversely  to  appellant's  contention  in 
the  former  case  of  Stone  v.  Bancroft,  supra. 

3.  Appellant's  next  contention  is  that  by  the  terms  of  the  contract 
plaintiff  could  recover  nothing  until  the  expiration  of  the  ten  years  '  ser 
vice  contemplated  by  said  contract.    There  is  no  merit  in  this  conten 
tion.    This  was  a  contract  of  hiring  for  the  period  of  ten  years  with  com 
pensation  fixed  at  $350  per  month  and  that  amount  was  due  and  owing 
at  the  conclusion  of  each  month's  service.    There  is  nothing  in  the  con 
tract  to  indicate  an  intention  as  to  the  times  of  payment,  otherwise  than 
as  above  stated. 

4.  Appellant's  last  contention  is  based  on  section  1980  of  the  Civil 
Code,  which  provides  as  follows:   "A  contract  to  render  personal  ser 
vice,  other  than  a  contract  of  apprenticeship,  as  provided  in  the  chapter 
on  Master  and  Servant,  cannot  be  enforced  as  against  the  employee  be 
yond  the  term  of  two  years  from  the  commencement  of  service  under  it  • 
but  if  the  employee  voluntarily  continues  his  service  under  it  beyond 
that  time,  the  contract  may  be  referred  to  as  affording  a  presumptive 
measure  of  the  compensation." 

There  is  nothing  in  this  contention  because  (1)  the  statute  was  not 


that 


CALIFORNIA  DECISIONS.  699 

pleaded;    (2)  it  would  not  have  been  a  bar  or  defense  to  this  action 
if  it  had  been  pleaded. 

The  judgment  and  order  should  be  affirmed. 

GRAY,  C. 
(We  concur: 

HAYNES,  C. 
COOPER,  C. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  and  or- 
der  are  affirmed. 

GAROUTTE,  J. 
HARRISON,  J. 
VAN  DYKE,  J. 


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INDEX 


Page.  Folio. 

Answer 11  25 

Assignment  of  Errors 238  707 

Certificate  to  Judgment  Roll 16  42 

Complaint 1  1 

Certificate  of  Judge  to  Statement 258  767 

Defendant's  Request  to  Charge  the  Jury 231  686 

Demurrer  to  Complaint 8  17 

Instructions  to  the  Jury 215  638 

Judgment  on  Verdict 15  38 

Notice  of  Appeal 259  770 

Notice  of  Intention  to  Move  for  New  Trial 17  44 

Order  Denying  Motion  for  New  Trial 258  768 

Order  Overruling  Demurrer  to  Complaint 10  24 

Special  Issue  Requested  by  Defendant  to  be  Submitted  to 

the  Jury 214  636 

Specification  of  Particulars  in  which  Verdict  is  Against  Law  241  717 

Specification  of  Errors  in  Law  Occurring  at  the  Trial 242  718 

Statement  on  Motion  for  New  Trial 18  47 

Stipulation 260  773 

Testimony — 

Bancroft,  H.  H.,  direct 163  482 

"              "        cross 177  523 

re-direct 201  597 

Boyns,  W.  C.,  rebuttal 205  608 

"            "      cross 206  611 

Crawford,  Daniel,  direct 87  254 

"                "        cross 88  256 

Edwards,  George,  direct 147  435 

cross 148  438 

Elliott,  0.  H.,  direct 139  410 

"           "       cross 142  419 

Hambly,  H.  B.,  direct 85  249 

Hambly,  Nyna,  direct 92  269 

"             "       cross 93  273 

Hartwell,  W.  H.,  direct 103  301 

cross...                                                 .  106  312 


INDEX. 

Page.  Folio. 

Hayes,  Eleanor,  direct 97  284 

"            "        cross 99  291 

Miller,  Dr.  J.,  direct 126  371 

"             "       cross 132  388 

"            "       re-direot 139  409 

Monk,  H.  M.,  direct 142  420 

"             "      cross 144  425 

Moore,  S.  B.,  rebuttal 206  612 

"           "        cross 207  615 

Morrison,  George  H,  direct 150  444 

"                     "        cross 154  456 

re-direct 161  477 

"                    "        re-cross 162  479 

"                    "        recalled 202  599 

Sessions,  D.  R.,  direct 83  242 

"           "        cross 85  247 

Staib,  F.  C.,  direct 100  294 

"      cross 102  398 

Stone,  N.  J.,  direct 18  48 

"          "       cross 43  123 

"          "        re-direct 71  205 

"          "        re-cross 81  237 

recalled 123  363 

"          "        rebuttal 209  621 

"          "        cross 213  632 

Trigo,  Jose  M.,  direct 109  319 

cross 120  354 

"            "          re-direct..                                                .  123  361 


IN  THE 


STATE  OF  CALIFORNIA 


Transcript    on    Appeal. 

In  the   Superior   Court  of  the   City  and   County 
of  San  Francisco,    State  of  California. 


2  N.  J.  STONE, 


Plaintiff. 

vs. 


H.  H.  BANCROFT, 

Defendant. 


COMPLAINT. 

N.  J.  Stone,  the  plaintiff  herein,  complains  of 
H.  H.  Bancroft,  the  defendant  herein,  and  for 
cause  of  action  alleges: 


INDEX. 


Page.  Folio. 

Hayes,  Eleanor,  direct 97  284 

"            "        cross 99  291 

Miller,  Dr.  J.,  direct 126  371 

"            "       cross 132  388 

"            "       re-direct 139  409 

Monk,  H.  M.,  direct 142  420 

"            "      cross 144  425 

Moore,  S.  B.,  rebuttal 206  612 

"           "        cross 207  615 

Morrison,  George  H,  direct 150  444 

cross 154  456 

"                    "        re-direct 161  477 

re-cross 162  479 

recalled 202  599 

Sessions,  D.  R.,  direct 83  242 

"           "        cross 85  247 

Staib,  F.  C.,  direct 100  294 

"      cross 102  398 

Stone,  N.  J.,  direct 18  48 

' '       cross 43  1 23 

"          "        re-direct 71  205 

"          "        re-cross 81  237 

"          "        recalled 123  363 

"          "        rebuttal 209  621 

cross 213  632 

Trigo,  Jose  M.,  direct 109  319 

"          cross 120  354 

"            "          re-direct..                                                .   123  361 


IN  THE 

SUPREME  COURT 


1 

OF  THE 


STATE  OF  CALIFORNIA 


Transcript    on    Appeal. 

In  the   Superior   Court  of  the    City  and    County 
of  San  Francisco,    State  of  California. 


2  N.  J.  STONE, 

Plaintiff. 

vs. 

H.  H.  BANCROFT, 

Defendant. 


COMPLAINT. 

N.  J.  Stone,  the  plaintiff  herein,  complains  of 
H.  H.  Bancroft,  the  defendant  herein,  and  for 
cause  of  action  alleges: 


4  I. 

That  heretofore,  to  wit :  on  the  20th  day  of 
August,  A.  D.,  1886,  plaintiff  and  defendant  made 
and  entered  into  the  following  agreement  : 

"  This  agreement,  made  in  San  Francisco,  Cali- 

ry  /  / 

fornia,  by  H.  H.  Bancroft  and  N.  J.  Stone,  wit- 
nesseth:  That  in  consideration  of  the  valuable 
services  done  by  the  said  Stone,  in  conducting 
the  publication  and  sale  of  the  historical  works  of 

f-  the  said  Bancroft,  the  business  formerly  being 
conducted  as  the  Bancroft's  Works  Department 
of  A.  L.  Bancroft  &  Co.,  but  now  being  done  and 
shortly  to  be  incorporated  under  the  laws  of  Cali 
fornia,  as  the  History  Company,  the  said  Ban 
croft  hereby  sells  and  assigns  to  the  said  Stone  a 
one-tenth  interest  in  the  said  History  Company, 
plates,  paper,  stock,  money,  outstanding  accounts, 
or  other  property  of  said  company,  upon  the  fol 
lowing  conditions  : 

6  "  The  said  N.  J.  Stone  is  to  devote  his  whole 
time  and  best  energies,  so  far  as  his  health  and 
strength  shall  permit,  for  a  period  of  not  less  than 
ten  years  from  the  date  o  f  this  agreement,  to  the 
publication  and  sale  of  the  historical  works  of 
H.  H.  Bancroft,  and  of  such  other  works,  and 
conduct  such  other  business  as  may  be  from  time 
to  time  taken  up  and  entered  into  by  said  History 
Company  ;  and  the  said  Stone  agrees  not  to  enter 


5 

into  or  engage  in,  directly  or  indirectly,  any  other 
mercantile  or  manufacturing  business,  or  to  any 
other  business  or  occupation  which  shall  in  any 
wise  absorb  his  mind  and  strength,  or  interfere 
with  his  interest  or  efforts  on  behalf  of  the  said 
History  Company  during  the  said  term  of  ten 
years. 

''  Upon  the  incorporation  of  the  History  Com 
pany  one-tenth  of  the  whole  number  of  shares 
shall  be  issued  and  delivered  to  the  said  N.  J. 

o 

Stone;  but  should  the  said  Stone  fail  in  any  wise 
to  carry  out  this  agreement,  or  any  part  thereof, 
in  its  full  letter  and  spirit,  then  the  said  one-tenth 
interest  in  the  said  History  Company  shall  be 
forfeited  and  revert  to  the  said  H.  H.  Bancroft ; 
provided,  and  it  is  distinctly  understood  and 
agreed,  that  in  case  of  the  death  of  the  said  N.  J. 
Stone  before  the  expiration  of  five  years  from  the 
date  of  this  agreement,  the  said  Stone  having 
9  fulfilled  all  the  conditions  of  this  agreement  up  to 
that  time,  then  one-half  of  the  said  one-tenth  in 
terest  of  the  said  Stone  in  the  History  Company 
shall  go  to  his  heirs,  and  be  their  property  uncon- 
ditionallv  ;  and  in  the  event  of  the  death  of  the 
said  Stone  at  any  time  after  the  expiration  of  five 
years  from  the  date  of  this  agreement,  the  terms 
hereof  having  been  fully  complied  with,  then  the 
whole  of  the  said  one-tenth  interest  shall  belong 
to  his  heirs  unconditionally. 


io  "The  salary  of  the  said  Stone  shall  be  $350  a 
month.  The  copyright  of  the  said  historical 
works  belongs  exclusively  to  the  said  Bancroft, 
and  shall  be  fifty  cents  a  volume  for  the  History 
and  Diaz,  and  twenty  cents  on  the  little  history 
of  Mexico. 

"  Signed  in   San  Francisco,  the  twentieth  day 
of  August,  1886. 

-Witness:  H.  H.  BANCROFT. 

"  W.  H.  HURTWELL.        N.  J.  STONE." 


ii 


II. 


The  plaintiff  has  honestly  and  faithfully  per 
formed  all  of  the  terms  and  conditions  of  said 
contract,  on  his  part'to  be  kept  and  performed. 


III. 

12 

That  the  defendant  has  failed  and  neglected  to 
perform  the  terms  and  conditions  upon  his  part  to 
be  performed,  and  has  failed,  neglected  and  re 
fused  to  pay  or  cause  to  be  paid  to  plaintiff,  the 
salary  mentioned  in  said  contract  at  the  rate  of 
three  hundred  and  fifty  dollars  per  month,  since 
the  first  day  of  July,  A.  D.,  1892,  and  still  fails 
and  refuses  so  to  do. 


7 

13  IV. 

That  there  remains  unpaid  to  plaintiff,  under 
the  terms  of  said  contract,  the  sum  of  four  thou 
sand  nine  hundred  dollars,  for  fourteen  months  at 
the  rate  of  three  hundred  and  fifty  dollars  per 
month. 

Wherefore,  plaintiff  demands  judgment  for  the 
sum  of  four  thousand  nine  hundred  ($4,900)  dol 
lars  and  for  costs  of  suit. 

14  KEDDY,  CAMPBELL  &  METSON, 

Attorneys  for  Plaintiff. 


STATE  OP  CALIFORNIA, 
City  and  County  of  San   Francisco 


>  ss. 


15  N.  J.  Stone,  being  duly  sworn,  deposes  and 
says:  That  he  is  plaintiff  in  the  above-entitled 
action;  that  he  has  read  the  above  and  forego 
ing  complaint,  and  knows  the  contents  thereof; 
that  the  same  is  true  of  his  own  knowledge,  ex 
cept  as  to  the  matters  which  are  therein  stated  on 
his  information  or  belief,  and  as  to  those  matters 
that  he  believes  it  to  be  true. 

N.  J.  STONE. 


8 

1 6  Subscribed  and  sworn  to   before  me  this  12th 
day  of  September,  1893. 

[SEAL]  CHAS.    T.    STANLEY, 

Notary  Public. 

[Endorsed:]     Filed  September  12,  1893. 

M.  C.  HALEY,  Clerk. 
By  WM.  H.  LYMAN,  Deputy  Clerk. 

Filed  Nov.  4,  1893. 

17  A.  A.  BAILEY,  Clerk, 


DEMURRER  TO  COMPLAINT. 

[Title  of  Court  and  Cause.] 

Now  comes  the  defendant,  and  demurs  to  the 
plaintiff's  complaint  on  file  herein,  upon  the  fol 
lowing  grounds  to  wit: 

First — That  said  complaint  does  not  state  facts 
1 8  sufficient  to  constitute  a  cause  of  action. 

Second — That  said  complaint  is  ambiguous  in 
this: 

(a)  That  it  does  not  appear  therefrom  whether 
the  corporation  referred  to  in  the  agreement  set 
forth  in  said  complaint  was  ever  formed  or  or 
ganized. 

O 

(6)  That  it  does  not  appear  therefrom  what 
services,  if  any,  were  performed  by  the  plaintiff. 


J9  ^(c)  That  it  does  not  appear  whether  the  ser 
vices,  if  any,  performed  by  the  plaintiff,  were  per 
formed  for  the  defendant,  or  for  said  corporation, 
the  History  Company. 

Third — That  said  complaint  is  uncertain  in  this : 
(a)    That  it  does  not  appear  therefrom  whether 
the  corporation  referred  to  in  the  agreement  set 
forth  in  said  complaint  was  ever  formed  or  organ 
ized. 

20  (b)    That  it  does  not   appear  therefrom  what 
services,  if  any,  were  performed  by  the  plaintiff 

(c)  That  it  does  not  appear  whether  the  ser 
vices,  if  any,  performed  by  the  plaintiff,  were  per 
formed  for  the  defendant,  or  for  said  corporation, 
the  History  Company. 

Fourth— That  said  complaint  is  unintelligible  in 
this  : 

(a)    That  it  does  not  appear  therefrom  whether 

21  the  corporation  referred  to  in  the   agreement  set 
forth  in  said    complaint  was  ever   formed  or  or 
ganized. 

(6)  That  it  does  not  appear  therefrom  what 
services,  if  any,  were  performed  by  the  plaintiff. 

(c)  That  it  does  not  appear  whether  the  ser 
vices,  if  any,  performed,  by  the  plaintiff,  were 
performed  for  the  defendant,  or  for  said  corpora 
tion,  the  History  Company. 


IO 

22  Wherefore,  this  defendant   prays  to  go  hence 
dismissed  with  his  costs. 

E.   J.  MoCUTCHEN, 

Attorney  for  Defendant. 

[Endorsed  :]  Service  of  a  copy  of  the  within  de 
murrer  to  complaint  is  hereby  admitted  this  10th 
day  of  Oct.,  1893. 

REDDY,  CAMPBELL  &  METSON, 

23  Attorneys  for  Plaintiff. 

Filed  October  10,  1893. 

M.  C.  HALEY,  Clerk. 
By  J.  W.  SULLIVAN,  Deputy  Clerk. 
Filed  Nov.  4,  1893. 

A.  A.  BAILEY,  Clerk. 


ORDER  OVERRULING  DEMURRER. 

[Title  of  Coutr  and  Cause.] 

Monday,  December  18th,  A.  D.,  1894.  Pres 
ent,  Hon.  Joseph  P.  Jones,  Judge. 

The  briefs  heretofore  ordered  having  been  fur 
nished,  it  is  ordered  that  the  demurrer  be  sub 
mitted;  to  the  Court  for  decision;  and  the  Court 
having  sufficiently  considered  the  same,  it  is 
ordered  that  the  said  demurrer  be  and  the  same  is 


II 


25  hereby  overruled  with  ten  days,  allowed  to  defen 
dant  in  which  to  answer. 


ANSWER. 

[Title  of  Court  and  Cause.] 

The  above-named  defendant,  answering  unto 
plaintiff's  complaint  on  file  herein  : 
x-  Denies,  that  plaintiff  has  honestly  and  faith 
fully,  or  honestly  or  faithfully,  or  otherwise,  per 
formed  all  or  any  of  the  terms  and  conditions  of 
said  contract  set  forth  in  plaintiff's  complaint,  on 
his,  plaintiff's,  part  to  be  performed. 

Denies,  that  he,  defendant,  has  failed  and  neg 
lected,  or  failed  or  neglected,  to  perform  the 
terms  and  conditions  of  the  contract  mentioned  in 
plaintiff's  complaint,  upon  his,  defendant's,  part  to 
be  performed ;  but  avers,  that  he  has  duly  per- 
27  formed  all  the  conditions  on  his  part  to  be  per 
formed  in  and  by  the  terms  and  stipulations  of 
said  contract. 

Defendant  admits  that  he  has  not  paid  or 
caused  to  be  paid  to  plaintiff  the  salary  mentioned 
in  said  contract  at  the  rate  of  $350  per  month 
since  the  1st  day  of  July,  1892  ;  but  avers,  that 
he  is  under  no  obligation  to  pay  said  salary  or 
any  part  thereof,  and  that  plaintiff  has  not,  at  any 


12 

2S  time  since  the  date  of  said  agreement  set  forth  in 
plaintiff's  complaint,  been  in  the  service  or  em 
ployment  of  defendant,  under  the  terms  of  said 
agreement,  or  otherwise,  or  at  all. 

Denies,  that  there  remains  due  or  unpaid  to 
plaintiff,  under  the  terms  and  conditions  or  the 
terms  or  conditions  of  said  contract  mentioned  in 
plaintiff's  complaint,  the  further  sum  of  $4,900, 
or  any  sum,  for  fourteen  or  any  number  of  months, 
at  the  rate  of  $350,  or  any  sum,  per  month,  or 

2Q 

that  there  remains  due  or  unpaid  to  plaintiff  any 
sum  whatever. 

And  as  a  further  and  separate  answer  to  plain 
tiff's  complaint  on  file  herein, 

Defendant  avers  that  on  the  twenty-third  day 
of  September,  1886,  the  History  Company,  men 
tioned  in  the  agreement  set  forth  in  plaintiff's 
complaint,  was  duly  incorporated  under  and  by 
virtue  of  the  laws  of  the  State  of  California  under 
30  the  name  of  the  History  Company,  and  that  ever 
since  said  date  the  said  History  Company  has 
been  and  still  is  a  corporation  duly  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the 
State  of  California,  and  having  its  principal  place 
of  business  in  the  City  and  County  of  San  Fran 
cisco,  State  of  California. 

That  immediately  upon  the  incorporation  of 
said  History  Company  defendant  transferred  to  it, 


13 

31  the  said  corporation,  the  properties  mentioned  in 
said  agreement  set  forth  in  plaintiff's  complaint, 
and  thereupon,  both  plaintiff  and  defendant  be 
came,  ever  since  have  been,  and  now  are,  stock 
holders  of  and  in  said  corporation,  and  after  said 
formation  the  said  corporation  carried  on  and 
conducted  the  business  mentioned  in  said  agree 
ment,  and  defendant  has  had  nothing  to  do  with 
said  business  since  that  time,  except  as  an  officer 
of  said  corporation.  That  from  the  date  of  the 

T,2 

incorporation  of  said  History  Company  until  on 
or  about  the  said  1st  day  of  July,  1892,  plaintiff 
acted  in  the  capacity  of  General  Manager  thereof, 
but  plaintiff  has  not  at  any  time  since  the  forma 
tion  of  said  corporation,  or  at  any  other  time 
since  the  date  of  said  agreement,  performed  for  or 
rendered  to  defendant  any  service  whatever. 

And  further  answering,  defendant  avers,  upon 
his  information  and  belief,  that  ever  since  on  or 
-i-  about  the  1st  day  of  July,  1892,  said  plaintiff  has 
been  engaged  in  carrying  on  and  conducting,  for 
himself  and  other  persons,  and  in  opposition  to 
said  History  Company,  a  business  of  the  same 
kind  and  character  as  that  carried  on  and  con 
ducted  by  said  History  Company. 

Wherefore,    defendant  having  fully  answered 
prays  to  be  hence  dismissed  with  his  costs. 

E.  J.  McCUTCHEN, 
Attorney  for  Defendant. 


14 

34  STATE  OF  CALIFORNIA,          ) 

County  of  San  Diego.  )  SS* 

H.  H.  Bancroft,  being  duly  sworn,  deposes  and 
says :  That  he  is  the  defendant  in  the  above  en 
titled  action;  that  he  has  read  the  above  and 
foregoing  answer,  and  knows  the  contents 
thereof;  that  the  same  is  true  of  his  own  knowl 
edge,  except  as  to  the  matters  which  are  therein 
stated  on  his  information  or  belief,  and  as  to 

35  those  matters  that  he  believes  it  to  be  true. 

H.   H.  BANCROFT. 


Subscribed  and  sworn  to  before  me  this  9th 
day  of  January,  A.  D.,  1894. 

[SEAL.]  W.  D.  WOODWINE, 

Notary  Public. 

[Endorsed  :]  Service  of  a  copy  of  the  within 
answer  is  hereby  admitted  this  llth  day  of  Jan 
uary,  1894. 

REDDY,  CAMPBELL    &  METSON, 

Attorneys  for  Plaintiff. 

Filed  January  12th,  1894. 

A.  A.  BAILEY,  Clerk. 
By  W.  DK  MARTINI,  Deputy  Clerk. 


37  VERDICT. 

(Title  of  Court  and  Cause.) 

We,  the  jury,  find  for  the  plaintiff  in  the  sum 
of  $4,900,  with  interest  at  (7)  seven  per  cent  per 
annum.  JOHN  W.  BOYD,  Foreman. 

March  23rd,  1894. 

[Endorsed:]  Filed  March  23,  1894. 

A.  A.  BAILEY,  Clerk. 


38 

JUDGMENT  ON   VERDICT. 

[Title  of  Court  and  Cause.] 

April  23d,  1894. 

Present,  Hon.  Jos.  P.  Jones,  Judge. 

This  action  came  on  regularly  for  trial.  The 
parties  appeared  by  their  respective  attorneys, 
Patrick  Reddy  and  J.  P.  Abbott,  Esqs.,  for 
plaintiff,  and  E.  J.  McCutchen  and  W.  S.  Wells, 

Esqs.,  for  defendant.      A  jury  of  twelve  persons 
o  >^ 

was  regularly   impaneled   and   sworn  to  try  the 

cause.  Witnesses  on  the  part  of  plaintiff  and  de 
fendant  were  sworn  and  examined.  After  hear 
ing  the  evidence,  the  arguments  of  counsel,  and 
the  instructions  of  the  Court,  the  jury  retired  to 
deliberate  upon  a  verdict,  and  subsequently  re 
turned  into  Court,  were  called  and  all  answered 
to  their  names  and  presented  the  following  ver 
dict,  to  wit: 


i6 

40  We,  the  jury,  find  for  the  plaintiff  in  the  sum 
of  $4,900,  with  interest  at  (7)  seven  per  cent  per 
annum.  JOHN  W.  BOYD,  Foreman. 

March,  23d,   1894. 

Wherefore,  by  virtue  of  the  law,  and  by  reason 
of  the  premises  aforesaid,  it  is  ordered,  adjudged 
and  decreed  that  said  N.  J.  Stone,  plaintiff, 
do  have  and  recover  from  the  said  H.  H.  Ban 
croft,  defendant,  the  sum  of  forty  nine  hundred 
dollars,  with  interest  thereon  with  interest  thereon 

41  amounting  to  the  sum  of  three  hundred  and  sev 
enty-eight  dollars,  together  with    costs  and  dis 
bursements  incurred    in    this   action,    amounting: 

'  ^2 

to  the  sum  of  two  hundred  and  seven  dollars. 

Judgment  entered  this  24th  day  of  March, 
A.  D.,  1894. 

A.  A.  BAILEY,  Clerk. 
By  W.  DE  MARTINI,  Deputy  Clerk. 

?  CERTIFICATE   TO    JUDGMENT    ROLL. 

4"* 

[Title  of  Court  and  Cause] 

I,  the  undersigned,  County  Clerk  of  said 
County,  and  ex-officio  Clerk  of  the  Superior  Court 
therein,  do  hereby  certify  the  foregoing  to  be  a 
true  copy  of  the  judgment  rendered  in  the  above- 
entitled  action,  and  entered  in  vol.  5,  Judgment 
Book  of  said  Court,  at  page  178.  And  I  further 
certify  that  the  foregoing  papers  hereto  annexed 
constitute  the  Judgment  Roll  in  said  action. 


43       Witness  my  hand  and  the  seal  of  our  Superior 
Court  affixed  this  24th  day  of  March,  1895. 
[SEAL]  A.  A.  BAILEY,  Clerk. 

[Endorsed  :]  Judgment  Roll,  filed  March  24th, 
1894. 

A.  A.  BAILEY,  Clerk. 


NOTICE  OF  INTENTION  TO  MOVE  FOR 
NEW  TRIAL. 

[Title  of  Court  and  Cause.] 

To  the  plaintiff  above  named,  and  Messrs. 
Reddy,  Campbell  and  Metson,  his  attorneys  : 

You  will  please  take  notice  that  the  defendant 
intends  to  and  will  move  this  Honorable  Court  to 
set  aside  and  vacate  the  verdict  and  decision 
heretofore  re  ndered  and  entered  in  the  above- 
entitled  action,  and  to  grant  a  new  trial  thereof, 
upon  the  following  grounds,  to  wit: 

First. — Insufficiency  of  the  evidence  to  justify 
45  the  verdict  of  the  jury. 

Second. — That  said  verdict  is  against  law. 

Third. — Errors  in  law  occurring  at  the  trial  and 
excepted  to  by  the  defendant. 

Said  motion  will  be  made  upon  a  statement  of 
the  case  hereafter  to  be  prepared  and  served  upon 
you. 

Dated  March  30th,  1894. 

E.  J.  McCUTCHEN, 
Attorney  for  Defendant. 


i8 

tw 
46       [Endorsed:]     Service  of  a  copy  of  the  within 

Notice  of  Intention,  etc.,  is  hereby  admitted  this 
30th  day  of  March,  1894. 

REDDY,   CAMPBELL  &  METSON, 

Attorneys  for  Plaintiff. 
Filed  March  31,  1894. 

A.  A.  BAILEY,  Clerk. 


STATEMENT  ON  MOTION  FOR 
NEW  TRIAL. 


[Title  of  Court  and  Cause.] 

The  above-entitled  cause  came  on  regularly  for 
trial  on  the  19th  day  of  March,  1894.  Messrs. 
Reddy,  Campbell  &  Metson,  and  J.  P.  Abbot 
appeared  as  counsel  for  plaintiff,  and  Messrs. 
E.  J.  McCutchen  and  W.  S.  Wells  as  counsel 
for  defendant. 

A  jury  was  duly  impaneled,  and  after  the  open 
ing  statement  by  counsel  for  plaintiff,  the  follow 
ing  testimony  was  taken  and  the  following  pro 
ceedings  were  had : 

N.  J.  Stone,  the  plaintiff,  was  called  as  a  wit 
ness  on  behalf  of  plaintiff,  and  after  being  duly 
sworn  testified  as  follows : 

I  reside  in  the  City  and  County  of  San  Fran 
cisco,  State  of  California,  and  have  resided  there, 


19 

49  with  the  exception  of  eight  years,  since  1863.  I 
was  born  in  New  Hampshire,  and  will  be  fifty-one 
years  of  age  in  June.  I  have  a,  family  consisting 
of  a  wife,  four  boys  and  a  girl.  I  became 
acquainted  with  defendant  in  the  latter  part  of 
1867.  First  had  personal  dealings  with  him  in 
the  latter  part  of  that  year.  I  was  connected 
with  the  house  of  A.  L.  Bancroft  &  Company. 
Knew  for  several  years,  from  about  1873,  that 
defendant  was  at  work  upon  a  history  or  an  en- 

5  cyclopedia,  and  knew  definitely  with  reference  to 
it  in  1882.  It  was  called  "The  History  of  the 
Pacific  States."  He  discussed  with  me  his  plans 
with  reference  to  the  history,  and  engaged  me  in 
the  enterprise  in  February,  1882. 

Question  by  plaintiff's  counsel :  State  the  cir 
cumstances  ? 

Question  was  objected  to  by  defendant  as  irrel 
evant  and  immaterial. 

rj       Objection  was  overruled,  and  exception  taken. 
Exception  No.   1. 

A.     Defendant  sent  for  me  in  February,  1882, 

Question  by  plaintiff's  counsel:  Did  you  make 
any  contract  with  him  at  that  time  ? 

Question  was  objected  to  by  defendant  as 
irrelevant  and  immaterial. 

MR.  REDDY  :  We  propose  to  show  the  circum 
stances  under  which  the  agreement  was  made. 


20 

52       Objection   was  overruled  and  exception  taken 
by  defendant. 
Exception  No.   2. 

A.  I  did.  I  was  to  go  on  in  June  or  July 
to  take  charge  of  the  publication  of  the  works 
of  Hubert  H.  Bancroft,  and  commenced  on  the 
15th  day  of  June.  My  salary  from  the  15th  of 
June,  '82,  until  the  31st  of  December  was  two 
hundred  dollars  per  month.  After  the  31st  of 
December,  they  gave  me  fifty  dollars  more,  mak 
ing  two  hundred  and  fifty  dollars,  and  gave  me 
fifty  dollars  on  my  back  salary,  making  it  two 
hundred  and  fifty  dollars ;  it  ran  at  two  hundred 
and  fifty  dollars  until  July,  1883,  when  it  was 
made  three  hundred  dollars.  In  1884,  three  hun 
dred  and  fifty  ;  in  1885,  four  hundred,  and  I  was 
to  receive  four  hundred  and  fifty  in  July,  1886, 
and  five  hundred  in  July,  1887.  The  salary  was 
four  hundred  dollars  to  July  and  including  April, 
54  1886.  The  salary  was  being  paid  by  A.  L.  Ban 
croft  &  Company,  a  corporation  comprised  of 
A.  L.  Bancroft  and  H.  H.  Bancroft,  and  others 
sufficient  to  make  up  a  corporation.  I  entered 
into  this  arrangement  that  was  represented  in 
the  written  contract  in  the  early  part  of  May, 
1886.  In  that  agreement  the  History  Company 
is  referred  to.  It  was  decided,  after  the  fire,  to 
do  business  under  the  name  of  the  History  Com- 


21 

55  pany.  The  property  was  taken  out  of  the  hands 
of  A.  L.  Bancroft  &  Company  and  put  in  the 
hands  of  the  History  Company.  Prior  to  this 
agreement,  I  entered  into  an  oral  agreement  first, 
which  it  was  agreed  should  be  reduced  to  writing 
and  the  agreement  was  reduced  to  writing  on  the 
20th  of  August,  as  appears  by  the  papers.  It 
was  understood  that  the  oral  agreement  was  to 
be  reduced  to  writing,  but  the  particular  date  on 
which  that  was  to  be  done  was  not  stated,  but  we 
acted  under  it  immediately,  and  I  drew  only  $350 
salary  in  May  instead  of  $400,  and  from  May  on 
I  drew  only  $350  in  salary  and  acted  on  the 
terms  as  stated  in  the  written  agreement.  The 
written  agreement  was  made  the  day  it  bears 
date,  August  20,  1886  ;  but  I  began  immediately 
after  the  oral  agreement  was  completed.  We 
opened  our  bank  account  on  the  18th  of  May  as 
the  History  Company.  The  defendant  owned  the 

57  enterprise.  No  one  except  him  owned  any  part 
of  it  at  that  time,  nor  at  the  time  the  written 
agreement  was  made.  There  had  been  no  con 
veyance  to  me  of  any  property,  nor  was  any  con 
veyance  made  to  me  on  the  20th  day  of  August. 
All  I  had  was  the  agreement.  The  History 
Company  was  incorporated  on  the  23d  of  Septem 
ber,  1886;  that  is  my  impression.  I  do  not  know  of 
or  remember  that  any  conveyance  was  made  by 


22 


5  defendant  to  the  corporation.  After  the  incorpo 
ration,  I  received  certificates  representing  ten  per 
cent  of  the  capital  stock  of  the  History  Com 
pany.  I  also  received  salary.  Upon  the  organi 
zation  of  the  company  I  was  elected  Vice-Presi 
dent.  The  duties  assigned  me  under  that  office 
were  to  employ  agents  and  sell  the  works.  I 
continued  to  discharge  the  duties  of  Vice-Presi- 
dent  continuously  up  to  May,  1892,  up  to  May 
20th,  I  think,  and  was  then  superseded  by  Mr. 
Morrison. 

Question  by  plaintiffs  counsel  :  During  the 
time  that  you  were  in  the  management  of  the 
sale  of  the  History,  etc.,  were  any  dividends  paid  ? 

Question  was  objected  to  by  defendant  on  the 
Around  that  it  was  irrelevant  and  immaterial,  and 

O 

upon  the  further  ground  that  this  is  an  action 
brought  by  plaintiff  against  defendant  to  recover 
60  salary  under  this  agreement,  and  it  does  not  make 
any  difference  whether  this  corporation  paid 
dividends  or  did  not,  whether  the  business  was  a 
profitable  one  or  a  losing  one. 

Objection  was  overruled  and  exception  taken  by 
defendant. 

Exception  No.   3. 

A.  There  were.  We  paid  $90,000  dividend 
in  1888,  $105,000  in  1889,  $85,000  in  1890,  and 


23 

L  sufficient  in  1891  to  make  the  total  amount  of 
dividends,  together  with  two  of  $5,000  each, 
which  were  declared  in  1892,  a  total  of  $285,000. 
The  first  dividend  in  1892  was  declared  on  the 
18th  of  January — $5,000  ;  and  another  on  the 
llth  day  of  March  of  $5,000  more.  I  believe 
those  are  the  correct  dates.  During  the  several 
years  I  was  engaged  in  the  business,  I  devoted 
all  of  rny  time  to  it  to  the  exclusion  of  everything 
£2  in  the  world.  During  certain  of  those  years  I 
was  unembarrassed  and  not  interfered  with  by  any 
one  in  the  History  Company. 

Q.  State  the  facts  which  you  claim  interfered 
with  you  in  the  management  of  the  business  ? 

Question  was  objected  to  by  defendant  as  im 
material  and  irrelevant  under  the  pleadings  in  this 
case. 

Objection  overruled  and  exception  taken, 

6^ 

Exception   No.   4. 

A.  First,  by  taking  my  name  off  the  station 
ery  ;  this  was  done  in  1889.  Second,  by  having 
the  letters  opened  by  other  parties,  without  pass 
ing  through  my  hands — also,  in  1889;  and,  third, 
by  throwing  restrictions  about  me  as  to  engaging 
agents,  the  advances  made  to  them,  and  the  salar 
ies  paid  to  them,  etc.;  fourth,  by  organizing  a 


24 

64  bureau,  as  it  was  termed,  inside  the  History  Com 
pany.  Those  acts  interfered  with  me  as  they  pre 
vented  me  from  employing  agents,  and  belittled 
me  in  the  business,  and  made  it  impossible  for  me 
to  keep  the  run  of  the  business  as  I  had  before. 
In  consequence  of  these  acts  we  had  a  meeting 
in  1889  at  which  defendant  was  present. 

Question  by  plaintiff's  counsel :  What  was  his 
conduct  there,  and  what  was  the  result  of  it? 

Question  was  objected  to  by  defendant  as  irrel- 
evant  and  immaterial,  and  not  responsive  to  any 
issue  raised  in  the  case. 

Objection  was  overruled  and  exception  taken  by 
defendant. 

Exception  No.   5. 

Witness  continuing  :  We  held  the  meeting  for 
about  three  days,  and  I  finally  told  defendant 
that  I  was  there  to  do  what  they  prescribed  for 
me  to  do,  and  if  they  wished  me,  I  would  whittle 
66  the  end  of  a  pine  stick ;  but  I  told  them  it  would 
be  impossible  for  me  to  carry  on  the  business  on 
the  lines  they  had  prescribed.  Defendant  said  in 
reply:  "Mr.  Stone,  we  are  entirely  satisfied  with 
everything  you  have  done.  Your  management 
of  the  business  has  been  superb.  We  have  not  a 
complaint  to  offer  in  any  respect."  I  asked  him 
what  was  the  occasion  of  the  meeting.  He  took 
off  his  glasses,  wiped  them,  put  them  on,  and  said, 


25 

67  "Mr.  Stone,  let  us  go  and  have  some  lunch,"  and 
that  was  the  end  of  the  matter.  Things  moved 
on  in  the  usual  lines  after  that,  except  that  I  was 
restricted  in  regard  to  the  employment  of  agents, 
and  my  name  was  not  on  the  stationery,  and  I  did 
not  have  the  opening  of  letters.  That  was 
brought  up  at  the  meeting  at  that  time,  and  a 
resolution  was  passed  in  regard  to  it. 

The  next  disturbance  occurred  in  May,  1892. 
There    was   a    good  deal  of  friction.     I  did  not 

Do 

have  charge  of  the  business  in  the  sense  I  had 
had  charge  of  it  previously.  I  was  interfered 
with  constantly  by  defendant.  He  had  the 
entire  direction  of  the  corporation  from  the  fact 
that  the  other  directors  were  simply  his  wife, 
daughter,  Mrs.  Stone  and  myself.  The  defendant 
said  Mrs.  Bancroft  and  his  daughter  were  put  in 
as  directors  for  the  purpoes  of  having  a  corpora 
tion.  They  were  entirely  under  his  direction.  I 
69  do  not  think  I  ever  heard  defendant  say  whether 
or  not  they  were  acting  under  his  direction,  or 
whether  they  exercised  an  independent  judgment. 
When  we  had  our  meetings  it  was  decided  by  de 
fendant  what  was  to  be  done,  and  they  came  and 
did  it.  I  have  heard  him  ask  one  to  read  resolu 
tions,  and  others  to  second  them,  and  those  reso 
lutions  were  passed,  and  there  never  was  a  dis 
senting  voice.  I  attended  the  meeting  of  directors 


26 

70  of  May  20th,  1892,  at  which  I  was  superseded  as 
director  and  Vice-President.  I  received  my 
salary  for  May  and  for  June,  but  not  for  July.  I 
have  not  received  any  salary  since  July,  1892.  I 
have  applied  for  it  to  Mr.  Borland,  the  Secretary 
and  Treasurer  of  the  company. 

Question  by  plaintiff's  counsel :  When  you 
made  application  for  it,  what  response  did  you 
receive  ? 

Question  was  objected  to  by  defendant  on  the 
'     ground  that  he  was  not    bound  by  any  response 
made  to  the  witness  by  somebody  else. 

Objection  was  overruled  and  exception  taken 
by  defendant. 
Exception  No.   6. 

A.  He  told  me  that  defendant  requested  him 
not  to  pay  me. 

Witness  continuing :  I  was  in  the  full  dis 
charge  of  the  duties  of  my  office  up  to  May  20th. 
72  Then  the  correspondence  was  taken  away  from  me 
— the  daily  mail,  orders  and  remittances  and  letters 
in  reference  to  business  from  agents,  etc.  Next 
my  stenographer  was  taken  away. 

Q.     What  next?. 

A.  The  boy  in  the  office  was  forbidden  to  keep 
any  letters  for  me. 

Defendant  moved  to  strike  out  this  answer  as 
being  a  conclusion  of  the  witness,  and  on  the  fur- 


27 

73  ther  ground  that  the  defendant  was  not  bound  by 
it  unless  he  gave  the  direction. 

The   Court  stated  that  it  must  be  connected, 
and  denied  the  motion,  to  which  ruling  defendant 
excepted. 
Exception  No.  7. 

Witness  continuing  :  Next,  my  desk  was 
moved  from  its  place  outside  the  rail,  and  then  it 
was  moved  to  different  parts  of  the  building,  in 
some  places  as  far  as  150  feet  away.  It  was 
taken  away  and  the  casters  were  taken  off  so  that 
I  could  not  take  it  back  without  extreme  diffi 
culty  ;  I  couldn't  bring  it  back  without  carrying 
it.  The  ink  was  turned  over  the  top — all  over 
the  papers,  the  desk,  the  correspondence  and 
everything  else.  Two  inkstands  were  upset  and 
a  saw-horse  was  put  on  the  desk.  My  chair  was 
taken  away,  and  finally  my  desk  was  taken  up 
stairs  on  the  fifth  floor.  In  the  meantime,  the 
75  furniture  of  the  office  was  torn  up,  and  the  Ban 
croft  Company  was  moved  upstairs,  and  they  oc 
cupied  nearly  all  the  space  formerly  occupied  by 
the  History  Company.  My  desk  was  finally 
brought  back  from  upstairs,  but  placed  in  a  posi 
tion  where  I  couldn't  sit  down  at  it,  and  where  I 
couldn't  get  any  light  on  it.  The  safe  was  locked, 
the  combination  was  changed,  and  the  books, 
when  I  demanded  certain  books,  they  were  given 
to  me. 


28 

76       Question  by  defendant's  counsel :     Do  I  under 
stand  defendant  did  all  these  things  ? 

MR.  REDDY  :  Yes,  that  he  ordered  those 
things  done,  that  he  was  the  cause  of  it. 

O  7 

Witness  continuing  :  I  was  utterly  incapable 
of  forming  any  intelligent  idea  of  the  business,  or 
performing  any  intelligent  work.  I  was  utterly 
incapable  of  transacting  business.  The  safe  was 
locked,  the  combinatian  was  changed  so  that  I 

couldn't  unlock  it.     The  contracts  and  important 

77 

documents  were  kept  in  the  safe,  and  I  could  only 

get  them  when  Mr.  Dorland  chose  to  go  in  and 
open  the  safe.  The  employees  did  not  obey  my 
orders.  I  attempted  to  go  in  the  inside  room 
where  defendant  was  at  work,  and  speak  to  him, 
and  ask  him  what  he  meant  by  the  manner  in 
which  he  was  treating  me ;  and  he  replied  by 
asking  Mr.  Morrison  to  put  me  out  of  the  room. 
This  was  after  the  occurrences  which  I  have  re- 
78  peated.  Morrison  stepped  up  to  the  door  and 
pushed  me  out  through  it.  He  was  Vice-Presi- 
dent.  I  did  not  make  any  other  attempt  person 
ally  to  converse  with  defendant  with  reference  to 
the  discharge  of  my  duties,  except  at  the  time  the 
assessment  was  put  on.  That  was  in  September, 
'92.  I  omitted  to  say  defendant  pushed  my  desk 
away  from  me  one  day  when  I  was  writing.  He 
pushed  it  seven  or  eight  feet  away  when  I  stood 


29 

79  writing  at  it.  I  told  him  that  he  must  not  do  that ; 
he  was  going  altogether  too  far.  Nothing  else  oc 
curred  at  that  time. 

Question  by  plaintiff's  attorney :  Did  you 
ever  have  any  conversation  in  which  defendant 
said  or  spoke  anything  about  beggaring  you,  or 
anything  of  that  sort  ? 

A.  That  was  previously,  along  about  the  15th 
day  of  May.  That  was  a  day  or  two  before  I  was 
deposed  as  Vice-President  and  director. 

Q.     State  what  occurred  ? 

Question  was  objected  to  by  defendant  on  the 
ground  that  the  occurrence  took  place  prior  to 
the  1st  day  of  June,  1892,  and  the  witness  admits 
that  he  was  paid  for  all  services  rendered  by  him 
up  to  and  including  that  time. 

Objection  was  overruled,  to  which  ruling  de 
fendant  excepted. 

Exception  No.   8. 

3 1       Witness     continuing :     He     said  :       "  G d 

d n  you,  I    will   beggar   you  ;    I  will  beggar 

your  wife  ;  I  will  beggar  your  children  ;    G d 

d n  you,  I  will  make  beggars  of  you  all."     I 

had  had  some  conversation  with  defendant  of  a 
heated  nature  with  regard  to  the  actions  of  himself 
and  Mr.  Morrison  in  reference  to  myself ;  and  had 
charged  defendant  with  conspiring  with  Morrison 
to  drive  me  out  of  the  business.  He  said  he  had 


30 

82  not  done  so.  I  replied,  I  knew  he  had,  for  I  had 
evidence.  I  had  my  coat  on  my  arm  and  was 
starting  to  leave  the  office,  and  he  followed  me  a 
few  steps  arid  made  these  threats  to  me.  A  few 
days  after  that  he  sued  me  for  $107,000.  The 
suit  was  filed  against  me  to  deprive  me  of  my 
stock,  to  break  the  contract,  and  have  the  stock 
returned  with  the  dividends  I  had  received  ;  and 
also  charging  me  with  a  violation  of  my  contract, 
fraud,  conspiracy,  etc.  After  about  sixteen  months 
the  suit  was  dismissed,  and  has  not  been  renewed 
to  my  knowledge.  At  the  time  defendant  made 
this  statement  to  me  about  beggaring  me,  Miss 
Hayes  and  Mrs.  Hambly  were  present,  and  Dor- 
land  was  a  few  feet  away. 

Q.     Did  defendant  assign  any  reason  why  he 
would  beggar  you,  or  wanted  to  beggar  you  ? 

A.  We  had  had  a  very  heated  conversation,  and 
I  told  him  I  should  not  permit  him  to  carry  out 
$*  the  plans  I  believed  he  was  inaugurating.  That 
was  all.  The  next  day  or  two  I  spoke  to  defen 
dant,  asking  him  something  about  some  Mexican 
business  in  reference  to  the  History.  He  gave 
me  a  very  impudent  answer  and  told  me  not  to 
speak  to  him. 

Question  by  plaintiff's  counsel.     What  was  the 
answer  ? 

Question  was  objected  to  by  defendant  as  irrel- 


31 

85  evant  and  immaterial,  on  the  ground  that  it  took 
place  before  the  time  that  the  defendant  refused 
to  pay  plaintiff's  salary. 

Objection  was  overruled,  to  which  ruling  de 
fendant  excepted. 

Exception  No.   9. 

A.  He  declined  to  have  anything  to  do  with 
me.  He  said :  "  I  haven't  anything  to  say 
about  it,"  and  not  to  speak  to  him  about  any 
thing;.  There  was  some  other  conversation,  the 

Q£ 

exact  words  of  which  I  do  not  remember.  The 
next  time  he  came  near  me  after  that  was  when 
he  pushed  my  desk  ;  that  was  in  July,  1892. 
About  that  time,  or  shortly  after  that,  I  went  to 
go  in  his  room  to  speak  to  him,  when  Mr.  Mor 
rison  pushed  me  out  of  the  door.  I  next  met  de 
fendant  to  talk  to  him  at  the  meeting  at  the  time 
of  the  assessment,  which  I  think  was  November 
29th,  1892.  An  assessment  was  then  levied. 
3 j  Question  by  plaintiff's  counsel  :  For  how 
much  ? 

Question  was  objected  to  by  defendant  as  irrel 
evant  and  immaterial. 

Objection  was  overruled,  to  which  ruling  de 
fendant  excepted. 

Exception   No.   10. 

WITNESS  :     The  assessment  was  for  $50,000. 
Q.     Was  there  any  money  in  the  treasury  at 
the  time  that  assessment  was  levied  ? 


32 

88       Question  was  objected  to  by  defendant. 

Objection   was  overruled,  to  which  ruling  de 
fendant  excepted. 
Exception  No.   11. 

WITNESS  :  There  was  somewhere  from  five  to 
seven  thousand  dollars. 

Question  by  plaintiff's  counsel  :  They  pro 
ceeded  so  far  with  the  assessment  as  to  advertise 
your  stock  for  sale  under  that  proceeding,  didn't 


. 

Question  was  objected  to  on  the  ground  that  it 

was  irrelevant  and  immaterial. 

Objection  was  overruled,  to  which  ruling  de 
fendant  excepted. 

Exception  No.   12. 

A.  Yes,  they  did,  and  the  sale  of  the  stock 
was  prevented  by  injunction  by  a  suit,  and  is  still 
enjoined  by  a  suit  pending  in  San  Francisco.  At 
the  time  the  assessment  was  levied,  I  was  present, 
90  and  Morrison  arose  to  put  me  out  of  the  room. 
He  opened  the  door  and  came  and  stood  by  me, 
and  went  to  put  his  hand  on  me,  and  I  said, 
"  Don't  you  put  your  hand  on  me,"  that  I  had  as 
much  right  to  be  there  as  he  had.  He  said,  if  I 
had  a  right  to  be  there,  of  course  he  didn't  want 
to  put  me  out,  but  he  would  refer  the  matter  to 
defendant.  Defendant  said  to  throw  me  out  of 
he  window  ;  that  he  could  throw  me  out  of  the 


33 

9i  window  as  far  as  lie,  defendant,  was  concerned. 
Morrison  then  suggested  that  we  adjourn,  but  de 
fendant  said  no.  Then  they  held  a  consultation 
among  themselves,  a  whispered  consultation,  and 
concluded  to  go  on.  Defendant  said,  ''We  will  tro 
on  with  the  meeting,"  and  got  up  and  opened  all 
the  doors  wide,  and  they  read  the  resolution  in  re 
gard  to  the  assessment,  and  I  arose  and  said,  "  Mr. 
President  and  stockholders  of  the  History  Com 
pany,  I  object  to  levying  an  assessment ;  it  is 

Q2 

unnecessary,  and  I  protest  against  it."  He  said  to 
me  in  reply,  "  Shut  up,  or  I  will  throw  you  out  of 
the  window."  I  sat  down  and  the  resolution  was 
passed.  As  soon  as  it  was  passed  he  and  the 
others  started  to  leave  the  room.  Defendant 
came  back  and  said  to  the  Secretary  of  the  His 
tory  Company,  "  Don't  you  pay  any  attention  to 
that  thing  sitting  over  there  in  the  corner,"  and 
went  out  of  the  room.  During  the  years  I  have 
a*  named,  up  to  May,  1892,  I  was  in  attendance  at 
the  office  at  business  always  ;  I  was  never  away 
except  when  detained  by  sickness.  I  had  some 
vacations,  but  I  never  was  away  from  that  busi 
ness  a  day  that  I  did  not  receive  some  communi 
cation  from  the  company ;  in  other  words,  I  did 
not  receive  any  relaxation.  I  did  everything  in 
selling  books,  attending  to  the  business  of  that 
company  in  every  particular  to  the  detriment  of 


34 

94  my  health  and  pleasure.  After  May,  1892,  I 
visited  the  place  regularly  and  attempted  to  dis 
charge  my  duties.  I  did  this  up  to  about  the 
31st  of  December,  1892.  At  that  time  my  desk 
was  moved  upstairs  again,  and  then  moved  down 
again  and  placed  in  that  position  where  I  could 
not  use  it ;  I  could  see  nothing  ;  I  could  do  noth 
ing ;  I  couldn't  sit  at  the  desk.  I  made  applica 
tion  repeatedly  to  both  Dorland  and  Morrison  for 

instructions  as  to  what  I  should  do  or  should  not 

95 

do.        Morrison    was    then    Vice-President     and 

Dorland  Secretary  and  Treasurer. 

Question  by  plaintiff's  counsel  :  What  reply 
did  you  get  from  Morrison  when  you  applied  to 
him  for  instructions  as  to  what  you  should  do  ? 

Question  was  objected  to  by  defendant  as  irrel 
evant  'and  immaterial,  and  as  defendant  cannot 
be  bound  by  statements  of  Morrison. 

Objection  was   overruled,  to   which    ruling  de- 
96  fendant  excepted. 

Exception  No.   13. 

A.  Morrison  told  me  I  had  no  right  there. 
This  was  upon  my  applying  to  him  for  instruc 
tions  in  the  performance  of  my  duties,  and  in 
reference  to  information  as  to  certain  collections. 

Q.     What  was  the  reply  of  Dorland  ? 

Question  was  objected  to  by  defendant  on  the 
ground  that  defendant  was  not  bound  by  the 
statements  of  Dorland. 


35 

97  MR.  REDDY:  We  expect  to  show  he  was  author 
ized  to  give  this  very  answer,  and  was  ordered  to 
do  the  very  thing  he  did  do,  and  that  Mr.  Ban 
croft  ordered  it. 

THE  COURT  :  If  you  expect  to   follow  it   up  it 
will  be  proper. 

A.     Mr.  Dorland  said  he  had  been  instructed 
to  take  the   letters  away  from   me.     I   continued 
to  visit  the  business  place  of  the   History  Com 
pany  regularly  until  the  31st  of  December,  1892. 
I  ceased  to  go  there  for  the  reason  that  my  desk 
was  taken  upstairs,   and  kept  there  for   several 
days,  and  then  brought  down  again  and  put  in  the 
center  of  the  aisle,  where  I  could  only  stand  up  by 
it,  and  it  was  put  where  I  couldn't  get  any  light,  or 
put  a  chair  to  sit  upon,  by  it,  and  in   a  draught 
from  the  door.     I  could  not  do  any  work  where 
the  desk   was  put,  because    there    was   no    chair 
there,  and    it  was  impossible  for  me  to  place  a 
on  chair  there,  and  I  could   not  work  because  I  had 
nothing  to  work  with.     I  couldn't  see,  and  it  was 
in  the  draught  from   the    door.     There   was  not 
sufficient  light,  either  artificial  or  natural,  to  per 
mit  a   person  to  write,  or  to  see    their  writing. 
When  I  found   that  condition  of  things,  I   quit 
going  there,  but  before  doing  so,  or  about  that 
time,  I  went  and  served  notice  upon  Mr.  Dorland 
— a  verbal  notice. 


36 

100  Question:  To  what  effect?     What  did  you  say 
to  him? 

A.  I  demanded  of  him  that  he  permit  me  to 
go  to  work,  to  make  a  place  for  me  to  go  to  work 
under  my  contract — the  contract  with  defendant. 
That  I  was  there  for  that  purpose,  and  I  wished 
him  to  distinctly  understand  that  I  was  ready  and 
willing  at  all  times  to  perform  my  duties  under 
the  contract,  and  always  had  been  ready  and  will- 

101  m%  *°  g°  ^°  WOI%k.     I  have   not  engaged  in  any 
other  business  since  that  time  until  recently — the 
middle    or   latter  part  of    1893.     It  was      such 
business  that  I  was  always  ready  and  am  now,  to 
perform    the    contract.     I    have   abandoned   the 
business  I  engaged  in.     I  have  not  been  able  to 
realize  a  dollar  from  it.     I  gave  this  notice   to 
Mr.  Dorland  in  the  latter  part  of  December  and 
the  latter   part   of  January.     I   repeatedly   told 
him  I  was  ready  to  do  the  work,  but  I  took  a  wit- 

102  ness  on  this  occasion  with  me,  a  Mr.  Drew,  who 
took  the  conversation  down  in  shorthand. 

Q.  What  was  the  reply  made  by  Dorland  on 
that  occasion  ? 

Question  was  objected  to  by  defendant  on  the 
ground  that  it  was  irrelevant  and  immaterial, 
and  upon  the  ground  that  defendant  was  not 
bound  by  the  statement  of  Dorland. 


37 

103  Objection  was  overruled,  to  which    ruling  de 
fendant  excepted. 

Exception  No.   14. 

A.  Dorland  said  he  had  been  instructed  by 
defendant  not  to  let  me  have  the  correspondence, 
and  not  to  permit  me  to  do  any  work  there.  He 
was  Secretary  and  Treasurer  of  the  History 
Company,  and  owned  ten  shares  of  the  stock. 
He  was  under  the  direction  of  defendant.  I 

104  know  that  because  he  (Dorland)  said  so.     I  know 
nothing   further  about  Dorland  being  at  the  com 
mands  of  defendant  further  than  what  he  said  to 
me. 

Question  by  plaintiff's  counsel :  State,  if  you 
know  of  your  own  knowledge,  of  defendant  being 
present  with  yourself  and  Dorland  and  others, 
and  his  giving  instructions  for  actions,  and  it  being 
obeyed  by  Dorland  ? 

105  MR.  McCuTCHEN  :    I  object   to  that  question. 
The  fact  that  Dorland  had  at  some  time  in  Mr. 
Bancroft's  presence  obeyed  his   instructions    at 
some  meeting  of  the  company,  would  not  by  any 
means  lead  to  the  conclusion  that  on  this  occa 
sion  he  was  obeying  the  direction  of  defendant. 

Objection  was  overruled,  to  which  ruling  de 
fendant  excepted. 
Exception  No.   15. 


38 

io6  A.  I  do.  I  know  it,  because  it  is  in  a  series 
of  resolutions  which  were  copied  in  the  minutes. 
I  saw  them  in  Mr.  Bancroft's  handwriting.  They 
were  directed  to  Mr.  Hartwell ;  they  were  subse 
quently  copied  in  the  minutes.  The  originals  have 
been  in  the  safe  of  the  History  Company. 

[The  minute-book  of  the  History  Company 
was  produced  and  witness's  attention  directed, 
by  his  counsel,  to  pages  32  and  33.] 

Witness  continuing  :  I  do  not  know  of  any 
'  other  resolution  or  motion  passed  and  being 
ordered  by  defendant,  except  by  hearsay ;  I  do 
not  recollect  any  other.  There  may  have  been 
other  instances,  but  I  do  not  recollect  them  at 
this  moment.  When  I  addressed  Dorland  con 
cerning  my  services,  I  addressed  him  as  Secretary 
and  Treasurer  of  the  corporation,  and  he  answered 
me  in  that  capacity.  I  have  never,  at  any  time, 
neglected  any  of  my  duties.  I  will  swear  that  I 
Iog  have  not ;  never  at  any  time  has  any  demand  been 
made  upon  me  for  the  performance  of  any  duty 
which  I  did  not  promptly  discharge. 

(Book  of  "  Literary  Industries  "  shown  to  wit 
ness.) 

This  is  the  39th  volume  of  Bancroft's  works, 
published  November  30,  1890,  by  the  authority 
of  defendant.  I  know  it  was  published  by  his 
authority,  because  he  authorized  me  to  print  it 


39 

IO9  and    publish   it,  and    bind    it  and    distribute    it. 

MR.  REDDY  :  I  offer  in  evidence,  and  ask  to 
read,  from  several  places  in  this  History  bearing 
upon  the  question  of  how  plaintiff  discharged  his 
duties  under  this  contract,  as  the  declaration  of 
Mr.  Bancroft. 

The  offer  was  objected  to  as  irrelevant  and  im 
material;  and  particularly  so  at  the  stage  of  the 
case  at  which  it  was  offered. 

MR.  REDDY  :  I  desire  to  read  from  this  book  as 
the  declaration  of  Mr.  Bancroft  to  the  effect  that 
Mr.  Stone  discharged  his  duties  faithfully,  up  to 
this  time,  and  he  was  really  a  great  promoter  and 
the  cause  of  its  success  by  his  faithful  manage 
ment  of  the  enterprise  which  is  in  issue  and  the 
issue  of  this  cause. 

THE  COURT  :  It  seems  to  me  it  would  be  admis 
sible  under  certain  conditions.  It  certainly  would 
be  admissible  in  rebuttal  if  it  is  brought  back  to 
m  Mr.  Bancroft. 

MR.  REDDY  :  I   think   it  is  g^ood   original  evi- 

o  o 

dence.  I  would  like  to  put  it  in  now  so  that 
counsel  may  have  a  full  view  of  our  case. 

THE  COURT  :  Very  well.  Which  ruling  was 
excepted  to  by  defendant. 

Exception  No.   16. 

Thereupon  counsel  for  plaintiff  read  the  follow 
ing  extracts : 


40 

H2       Page  586.     "  Literary  Industries  "  : 

41  Further  than  this,  not  only  would  I  print,  but  I 
would  publish.  I  had  no  delicacy  now  in  placing  the 
imprint  of  the  firm  on  my  title  pages.  The  world  might 
call  it  making  merchandise  of  literature,  if  they  chose;  I 
knew  it  was  not,  that  is  to  say,  in  a  mercenary  sense.  There 
was  no  money  in  my  books  to  the  business;  hence,  the 
business  did  not  specially  want  them.  In  the  publication 
of  several  extensive  works,  the  house  had  acquired  a  na 
tional  reputation,  and  I  was  convinced  that  it  would  do 
better  with  this  series  of  Pacific  States  Histories  than  any 
other  firm.  So  I  engaged  Mr.  Nathan  J.  Stone,  lately  of 
Japan,  but  formerly  of  our  house;  a  man  of  marked  ability, 
of  much  experience  in  our  establishment  and  elsewhere) 
to  devote  himself  to  the  publication  and  sale  of  my  books. 
Transferring  to  him  the  business  connected  therewith,  I 
went  on  with  my  writing  more  vigorously,  if  possible, 
than  before.  I  requested  the  Mayor  and  the  Governor  to 
visit  the  library,  inspect  the  work,  and  then  give  me  a 
certificate  expressing  their  belief  in  the  completion  of  the 
work  as  then  promised,  which  was  at  the  rate  of  three  or 
four  volumes  a  year." 

Page  793:  "  Nathan  Jonas  Stone  was  born  in  Webster, 
Merrimac  County,  New  Hampshire,  June  llth,  1843,  which 
spot  was  likewise  the  birthplace  of  his  father,  Peter 
Stone.  Both  of  his  grandfathers  were  captains  in  the 
army,  one  serving  in  the  Revolutionary  War,  and  the 
other  in  the  War  of  1812.  Mr.  Stone's  early  life  was  spent 
on  a  farm;  working  during  summer,  and  attending 
school,  or  teaching,  in  winter.  No  better  training  can  be 
devised  for  making  strong,  self-reliant  men;  no  better 
place  was  ever  seen  for  laying  the  foundations  of  firm 
principles,  and  knitting  the  finer  webs  of  character,  than 
a  New  England  country  home.  In  1863,  being  then 
twenty  years  of  age,  Mr.  Stone  came  to  California  by 
way  of  Panama,  arriving  in  San  Francisco  on  the  18th 
day  of  August,  with  just  ten  cents  in  his  pocket.  Invest- 


*n&  ki8  capital  in  Bartlett  pears,  he  seated  himself  on  the 
end  of  a  log,  near  the  wharf  where  he  landed,  and  ate 
them.  Thus  fortified  for  whatever  fate  might  have  in 
store,  he  set  out  to  find  work.  He  knew  not  a  soul  in 
the  city,  having  thus  cast  himself  adrift  upon  the  tide  of 
his  own  native  resources,  in  a  strange  country,  at  this  early 
age,  with  cool  indifference  parting  from  his  last  penny, 
well  knowing  that  there  was  no  such  thing  as  starvation 
in  store  for  a  boy  of  his  mettle.  Times  were  very  dull, 
and  easy  places  with  good  pay  were  not  abundant.  Nor 
did  he  even  search  for  one;  but  after  walking  about  for 
the  greater  part  of  the  day,  making  his  first  tour  of  ob 
servation  in  the  country,  about  5  o'clock  he  saw  posted 

116  on  Kearny  Street  a  notice  of  workmen  wanted,  and  was 
about  making  inquiries  concerning  the  same,  when  he 
was  accosted  by  a  man  driving  a  milk  wagon,  who  asked 
him  if  he  was  looking  for  employment.     Stone  replied 
that  he  was;  whereupon,  the  man  engaged  him  on  the 
spot,  at  forty  dollars  a  month  and  board.     Three  months 

-afterward  he  was  offered,  and  accepted  the  superintend 
ence  of  the  Industrial  School  farm,  acting  later  as  teacher 
and  deputy  superintendent.  In  1867,  he  entered  the  house 
of  H.  H.  Bancroft  &  Company,  acting  as  manager  first 
of  the  subscription  department,  and  then  of  the  wholesale 
department.  In  1872,  he  became  interested  in  the  awaken 
ing  of  civilization  in  Japan,  and  opened  business  on  his 

117  own  account  in  Yokohama,  where  his  transactions  soon 
reached  a  million  of  dollars  a  year,  importing  general 
merchandise  and  exporting  the  products  of  the  country. 
He  placed  a  printing  press  in  the  Mikado's  palace,  which 
led  to  the  establishment  of  a  printing  bureau,  and  the 
cutting  out  and  casting  into  type  of  the  Japanese  charac 
ters.     Obliged    by   ill-health   to   abandon    business,   he 
returned  to  San  Francisco  in  1878  completely  prostrated; 
but  after  a  summer  at  his  old  home,  he  recuperated,  his 
health  still  further  improving  during  a  four  years'  resi 
dence  at  Santa  Rosa,  California.    Mr.  Stone  had  followed 
me  in  my  historical  efforts  with  great  interest  from  the 


42 

118  first.     He  had  watched  the  gradual  accumulation  of  ma 
terial,  and  the  long  labor  of  its  utilization.     He  believed 
thoroughly  in  the  work,  its  plan,  the  methods  by  which 
it  was  wrought  out,  and  the  great  and  lasting  good  which 
would  accrue  to  the  country  from  its  publication.     He 
was  finally  induced  to  accept  the  important  responsibility 
of  placing  the  work  before  the  world,  of  assuming  the 
general  management  of  its  publication  and  sale,  and  de 
voting  his   life  thereto.    No  one  could  have  been  better 
fitted  for  this  arduous  task  than  he.     With  native  ability 
were  united  broad  experience  and  a  keen  insight  into  men 
and  things.     Self-reliant  yet  laborious  in  his  efforts,  bold 
yet  cautious,  careful   in   speech,  of  tireless  energy,  and 

119  ever  jealous  for  the  reputation  of  the  work,  he  entered 
the  field  determined  upon  success.     A  plan  was  devised 
wholly  unique  in  the  annals  of  book  publishing,  no  less 
original,   no   less   difficult  of  execution   than   were  the 
methods  by  which  alone  it  was  made  possible  for  the  au 
thor  to  write  the  work  in  the  first  place.     And  with  un 
flinching  faith   and   loyalty,   Mr.    Stone   stood   by    the 
proposition  until  was  wrought  out  of  it  the  most  complete 
success." 

Witness  continuing  :  This  book  was  published 
November  20th,  1890.  I  have  a  letter  from  de 
fendant  to  Mr.  Dorland  of  recent  date  respecting 
the  engagement  of  my  services.  This  letter  was 
written  by  defendant.  I  have  seen  him  write  re 
peatedly,  and  am  familiar  with  his  handwriting 
and  his  signature.  This  is  in  the  handwriting  of 
Mr.  Hubert  Howe  Bancroft.  The  letter  is  dated 
August  9,  1893,  and  reads  as  follows  : 

"  Aug.  9th,  1893. 
Dear  Tom: 

Do  you  suppose  we  could  get  N.  J.  Stone  to 

take  charge  of  the  History  Company  and  work  the  Book 


43 

121  of  the  Fair  for  all  it  is  worth  on  the  Pacific  Coast.     It  is 
a  great  success  here,  and  in  connection  with  the  Midwin 
ter  Fair  there,  I  am  sure  a  large  and  profitable  business 
can  be  done  by  the  right  kind  of  a  man.     The  History 
Co.  now  handle  the  Book  of  the  Fair  at  60  per  cent  off  on  the 
Pacific  Coast,  or  such  parts  of  it  as  they  want,  and  a  good 
business  should  be  done  in  Cal.  on  write-ups  and  adver 
tisements. 

H.  H.  B. 

Just  got  3  orders  for  the  $500  edition,  taken  by  a  new 
man,  not  the  one  who  took  Higgenbotham  for  the  first 
$1,000  edition  last  week." 

122  [Admitted  in  evidence  and  marked  Plaintiff's 
Exhibit  1.] 

I  received  that  in  a  letter  from  Mr.  Dorland, 
dated  August  23,  1893,  as  folllows: 

"  San  Francisco,  California,  August  23,  1893. 
Dear  Mr.  Stone: 

I  received  the  enclosed  letter  from  Mr. 
Bancroft,  it  explains  itself;  what  do  you  think  of  the 
proposition.  They  have  sold  something  like  $210,000  of 
the  work  already. 

Yours  truly, 

123  T.  A.  C.  Dorland." 

[Marked  Plaintiff's  Exhibit  2.] 
That  is  in  the  handwriting  of  Mr.  Dorland. 

Q.     Did  you  make  any  reply  to  their  request  ? 
A.     I  did  not ;   no,  sir. 

CROSS-EXAMINATION. 

The  agreement  which  bears  date  August   20, 
1886,  was    practically    made    between    defendant 


44 

124  and  me  in  May,  1886,  and  the  agreement  of  Au 
gust  26,  1886,  contained  only  the  terms  of  the 
arrangement  made  between  me  and  defendant  in 
May,  1886,  and  I  do  riot  think  it  contains  anything 
else  ;  I  don't  think  -there  was  any  element  in  the 
agreement  of  May,  1886,  which  "was  not  subse 
quently  embodied  in  the  agreement  of  August, 
1886.  Between  May,  1886,  when  the  oral  agree 
ment  was  made  between  me  and  defendant,  and 

August,  1886,  when  the   written  agreement  was 
j  2  c 

°  executed,  I  carried  on  the  business  substantially 

the  same  as  I  did  subsequently,  after  the  agree 
ment  was  executed  in  August.  So  far  as  my  in 
terest  in  the  business  was  concerned,  it  was  the 
same  subsequent  to  May,  1886,  as  it  was  subse 
quent  to  August,  1886.  Prior  to  May,  1886,  the 
• 

business  which  is  referred  to  in  the  agreement 
and  set  out  in  the  complaint,  was  carried  on  by 
A.  L.  Bancroft  &  Company  under  the  name  of 
I26  the  "  Bancroft's  Works  Department"  of  A.  L. 
Bancroft  &  Company.  Subsequent  to  May,  1886, 
it  was  carried  on  under  the  agreement  which  I 
made  with  defendant.  At  all  times  from  May, 
1886,  up  to  the  formation  of  the  corporation  of 
the  History  Company,  the  business  referred  to  in 
this  agreement  was  done  either  under  the  oral 
agreement  or  under  the  written  agreement. 

I  understand  that  the  written  agreement   itself 


45 

127  conveyed  to  me  a  one-tenth  interest  in  the  busi 
ness.  From  the  date  of  the  verbal  agreement, 
made  in  May,  1886,  I  believe  I  was  the  owner 
of  a  one-tenth  interest  in  the  business,  and  also,  I 
had  a  contract  running  for  ten  years.  It  was  my 
impression  that  from  the  time  the  agreement  was 
made,  I  was  the  owner  of  a  one-tenth  interest  in 
the  business,  with  a  contract  running  over  ten 
years  at  a  stipulated  salary.  As  I  have  testified, 
the  History  Company,  the  corporation  referred  to 

T  28 

in  this  agreement,  was  formed,  ten  per  cent  of  the 
capital  stock  was  issued  to  me.  I  received  that 
ten  per  cent  under  this  agreement.  That  was  the 
only  agreement  I  had  with  defendant.  We  had 
other  agreements  with  reference  to  other  matters. 
In  reference  to  this  matter,  it  was  the  only  agree 
ment  by  which  I  was  entitled  to  ten  per  cent  of 
the  capital  stock  of  the  corporation.  After  the 
corporation  was  formed,  it  took  the  property  men- 
I29  tioned  in  this  agreement;  it  got  all  of  the  prop 
erty.  I  am  not  aware  that  defendant  ever  did 
turn  over  to  the  corporation  anything  which  he 
had  agreed  by  this  contract  to  turn  over ;  so  far 
as  I  know,  I  think  he  performed  the  contract  in 
that  respect.  After  the  corporation  was  formed, 
the  Treasurer  of  the  History  Company  paid  me 
the  compensation  which  I  received.  He  was  un 
der  my  orders. 


46 

130  The  compensation  was  paid  me  in  accordance 
with  this  agreement.     I  am  not  aware  that  I  re 
ceived  any  compensation  from  the  History  Com 
pany  for  salary  subsequent  to  this  incorporation, 
except  what  I  received  under  this  agreement.     I 
was  Vice-President  of  the  corporation  for  a  long 
time  after  it  was  formed. 

Q.  Did  you  not  receive  all  the  compensation 
paid  you  by  the  History  Company  from  the  date 
of  its  formation  up  to  May,  1892,  as  Vice-Presi- 

131  dent? 

A.     Yes,  I  think  I  did. 

(Book  of  By-Laws  of  the  History  Company 
shown  to  witness.) 

I  recognize  this  as  the  Book  of  By -Laws  of 
the  History  Company.  I  was  only  paid  one  sal 
ary  by  the  History  Company.  These  by-laws 
were  adopted  on  the  20th  of  October,  1886. 

(Section   2,  Article  VIII,  of  the   by-laws  was 

132  offered  in    evidence   by  defendant,  and    reads  as 
follows  : 

"  The  salary  of  the  Vice-President  shall  be 
$350  per  month." 

Q.  That  salary  was  paid  you  as  Vice-Presi- 
dent  for  how  long  ? 

A.  I  received  a  salary  of  $350  per  month 
until  the  end  of  June,  1892. 

Q.  How  long  did  you  receive  that  salary  as 
Vice-President  ? 


47 

133  A.  My  impression  is  there  was  some  repeal 
or  some  action  taken  in  reference  to  that  by-law 
in  the  early  part  of  1889. 

Q.  Then,  from  the  20th  of  October,  1886, 
until  some  time  in  1889,  you  received  a  salary  of 
$350  per  month  as  Vice-President  of  the  History 
Company  ? 

A.  Yes,  I  received  that  salary  under  my  con 
tract,  I  presume  ;  that  is  the  way  I  understood 
it.  I  understood  it  in  that  way  when  I  signed 
^  these  by-laws.  My  contract  did  not  make  me 
Vice-President. 

Q.  I  ask  you  whether  the  salary  of  $350  per 
month,  which  vou  received  from  October  20, 

V 

188  6,  down  to  the  date  of  the  repeal  of  this  by 
law  in  1889,  was  not  paid  you  as  salary  as  Vice- 
President  under  this  by-law  ? 

A.  I  did  not  consider  it  in  that  way.  I  con 
sidered  I  was  receiving  that  salary  under  the 
Xor  terms  of  that  contract. 

Q.  When  you  signed  this  declaration  on  the 
20th  of  October,  1886,  did  you  understand  that 
that  salary  of  $350  per  month  payable  to  the 
Vice-President,  was  to  be  paid  to  you  ? 

A.  I  understood  I  was  to  draw  $350  per 
month  salary  on  account  of  that  agreement. 

(Question  repeated.) 

A.  I  did  not  consider  it  in  that  way.  I  never 
thought  of  it  in  that  connection. 


48 

136  Q.  Then  did  you  understand  when  you  signed 
this  by-law,  that  the  manager  of  the  History 
Company  was  to  receive  $350  per  month  under 
your  contract,  and  that  the  Vice-President  of  the 
History  Company  was  to  receive  $350  per  month 
under  this  by-law  ? 

A.     No,  sir. 

Q.     What  did  you  understand  ? 

A.  I  understood  I  was  to  draw  $350  per 
month,  and  was  to  act  as  Vice-President  of  the 
"  company.  I  was  elected  Vice-President  of  the 
company.  As  I  said  before,  I  never  looked  at  it 
in  that  connection.  I  looked  at  it  as  I  was  to 
receive  that  money  under  my  contract.  From 
the  date  of  the  formation  of  the  History  Com 
pany  down  to  1892,  the  business  was  largely  under 
my  control,  but  not  altogether.  Between  May, 
1886,  when  the  oral  agreement  was  made,  and 
August,  1886,  when  the  written  agreement  was 
made,  I  had  charge  of  this  enterprise.  I  had 
charge  of  the  books.  My  salary  was  entered  on 
the  books ;  it  was  entered  in  the  salary  account 
and  carried  to  the  expense  account.  It  was 
always  entered  upon  the  books  from  the  date  of 
the  written  agreement,  and  was  one  of  the  ex 
penses  of  the  business,  and  all  the  profits  which 
were  divided,  either  in  the  shape  of  dividends  or 
in  any  other  way,  were  net  profits  after  the  de- 


49 

139  duction  of  all  expenses,  including  the  deduction 
of  my  salary.  My  salary  was  never  charged  to 
defendant  individually  on  the  books,  and  he  never 
paid  the  salary  individually;  the  salary  was  paid 
to  me  by  the  cashier  who  was  under  my  control 
and  control  of  defendant. 

Q.  This  $350  per  month  was  taken  by  you 
then  from  the  money  belonging  to  the  joint  ven 
ture  ? 

A.  It  was  not  taken  by  me ;  it  was  paid  me 
by  Mr.  Hart-well,  the  Treasurer,  and  came  out 
of  the  moneys  belonging  to  the  joint  venture  The 
arrangement  made  between  me  and  defendant  in 
May,  1886,  was  crystallized  by  the  agreement  in 
August,  1886,  and  was  that  I  was  to  get  10  per 
cent  of  the  profits  after  all  the  expenses  were 
paid,  including  my  own  salary.  I  was  to  have 
ten  per  cent  of  the  entire  business  and  ten  per 
cent  of  the  net  profits. 

j^!  I  don't  know  that  the  taking  of  my  name  oft' 
the  letter-heads  was  the  first  conduct  on  the  part 
of  defendant  of  which  I  complained ;  but  it  was 
one  of  the  things.  I  do  not  know  how  it  was 
done ;  that  is  one  of  the  things  I  do  not  under 
stand.  I  do  not  know  how  it  was  done.  I  have 
no  idea  how  it  was  done  ;  I  do  not  know  why  it 
was  done.  I  know  it  was  done  by  a  resolution  of 
the  Board  of  Directors  at  defendant's  written 


50 

request.  I  was  a  member  of  the  Board.  I  was 
there  at  that  time.  I  think  I  voted  for  the  reso 
lution.  I  think  my  name  was  taken  off  the  letter 
heads  pursuant  to  a  resolution  of  the  Board,  for 
which  I  voted  ;  and  yet  I  take  the  stand  here  and 
complain  that  that  is  one  of  the  things  which 

142  prevented  the  discharge  of  my  duties  under  this 
contract.     I  knew  this   morning  I   had   voted  for 
it.     There  were  only  two  adverse   votes  in   that 
book.     There  was  no  use  for  me  to  vote  against 
it.     I   knew  there  was  a   cut-and-dried   arrange 
ment,  and  that  opposition   on  my  part  would    be 
futile.     I  seconded  the  resolution  and  voted  for 
it.     I  know  that  resolution  was  directed  to  every 
officer  of  the  company.     It  affected  all  the  officers; 
I  found  a  grievance  in   that,  because  I    thought 
that  in  taking   my  name  off  the   letter-heads,  it 
would  injure  the  business ;  it  had  always  been  on 
there  from  the  time  I   was  first  connected   with 
the  business.     I   thought  it  would    be  noticed  by 
outside  parties.     Defendant's  name  had  been  upon 
the  letter-heads  for  a  long  time  before  this  reso 
lution  was  passed,  but  he  had  nothing  to  do  with 
the   correspondence   in   the    field.      I    was    very 
familiar  with    the  business  of  the    company.     I 

143  knew  what  should  be  done  to  make  it  a  success. 
I  was  to  get  15  per  cent  of  the  profits,  and  yet  I 
was   voting    for   a   resolution    which    I    thought 


145  would  injure  the  business  and  decrease  my  profits; 
but  notwithstanding  this  indignity  to  which  I  was 
subjected  in  1889,  I  continued  to  act  as  an  em 
ployee  of  the  company,  and  from  that  time  on 
received  $350  per  month  until  the  end  of  June, 
1892,  which  was  always  paid  to  me  by  the  cash 
ier  of  the  History  Company,  and  charged  upon 
the  books  of  that  company  to  the  expense  account. 
It  was  never  charged  to  defendant  individually  to 
my  knowledge.  At  the  meeting  in  1889  which 
lasted  three  days,  I  made  objections  to  what  de 
fendant  proposed  to  do,  and  said  I  would  do 
what  he  directed  me  to  do. 

Q.  Then  did  you  regard  yourself  as  under  the 
control  of  defendant  at  that  time  ? 

A.  Defendant  always  directed  the  History 
Company. 

Q.     Answer   iny    question.     Did   you    regard 
yourself  under  the   employment  of  defendant  at 
!47  that  time  ? 

A.  I  regarded  myself  as  a  member  of  the  His- 
tory  Company. 

Q.  Were  you  working  for  defendant  at  that 
time  ? 

A.  No,  I  presume  I  was  working  for  the  His 
tory  Company. 

Q.  And  at  all  times  from  the  organization  of 
the  History  Company  in  1886  down  to  1892,  you 
were  working  for  the  History  Company  ? 


52 

148  A.  I  was  working  nominally  for  the  History 
Company,  but  I  was  working  for  defendant  under 
the  contract.  In  1889  defendant  refused  to  give 
me  the  necessary  money  to  employ  agents,  and 
this  was  repeated  after  that  all  the  time,  notwith 
standing  that  I  continued  there  in  the  discharge 

a  o 

of  my  duties  to  the  best  of  my  ability. 

Q.  And  were  you  paid  your  salary  by  the 
History  Company  ? 

A.  Every  month  I  received  my  salary.  The 
last  salary  I  received  from  the  History  Company 
for  services  performed  was  in  the  month  of  June, 
1892.  During  July,  1892,  I  was  there  every  day 
writing  letters.  During  August,  1892, 1  was  there 
occasionally  writing  letters — not  very  often,  and 
the  same  during  September,  1892.  In  October, 
1892, 1  was  there  but  I  did  not  do  much  of  any 
thing.  In  November,  I  was  there  all  the  time  and 
did  less. 

ICQ  Q.  How  much  time  did  you  spend  there  in 
November  ? 

A.  I  was  there  part  of  the  time  ;  I  may  have 
been  away  a  few  days.  I  was  ill  once  or  twice 
and  away  a  few  days. 

Q.     And  in  December,  1892? 

A.  I  was  there  most  of  the  time.  About  the 
end  of  December  I  went  there  and  found  my  desk 
in  a  place  where  I  couldn't  work,  and  left.  In 


53 

151  January,  1893,  I  went  there  every  day,  and  in 
February,  1893,  I  went  there  until  I  served  this 
notice  upon  Mr.  Dorland,  the  early  part  of  1893, 
and  since  then,  I  presume  I  have  been  in  there 
twenty-five  times.  The  conversation  which  I  had 
with  Morrison  was  in  July,  1892.  The  conversa 
tion  which  I  had  with  defendant  when  he  said  he 
didn't  want  me  to  talk  to  him  was  on  the  22d  day 
of  May,  1892  ;  but  notwithstanding  that,  I  re 
mained  there.  I  made  a  demand  on  Dorland, 

^  the  Treasurer,  for  the  salary  claimed  to  be  due 
me  after  the  20th  of  May,  1892.  I  am  under 
the  impression  I  made  other  demands,  but  it  is 
not  clear  in  my  mind.  I  did  not  make  any  de 
mand  on  defendant,  and  have  not  spoken  to  him, 
with  the  exception  of  a  conversation  that  we  had 
one  Sunday  afternoon,  that  was  about  three  or 
four  weeks  ago.  He  telegraphed  Dorland  he 
would  like  to  have  me  meet  him  as  a  special  favor 
one  Sunday  afternoon,  just  after  these  letters 
came  from  Mr.  Dorland. 

(Defendant  here  offers  in  evidence  complaint  in 
case  of  N.  J.  Stone  vs.  The  History  Company, 
pending  in  the  Superior  Court  of  the  City  and 
County  of  San  Francisco,  State  of  California, 
which  complaint  is  in  the  words  and  figures  fol 
lowing,  to  wit  :) 

"  In  the  Superior  Court  of  the  State  of  California  in 
and  for  the  City  and  County  of  San  Francisco, 


54 
I54  N-  J-  STONE, 


Plaintiff. 


THE  HISTORY  COMPANY  (a  Corporation), 

Defendant. 

Plaintiff  complains  of  defendant   aboved   named  and 
for  cause  of  action  alleges: 

1.  That  the  said  defendant,  the  History  Company,  is 
and  was  at  all  the  times  herein  mentioned,  a  corporation 
duly  organized  and  existing  under  and   by  virtue  of  the 
laws  of  the  State  of  California. 

2.  That  between  the  30th  day  of  June,  1892,  and  the 
first  day  of  August,  1892,  at  the  City  and  County  of  San 
Francisco,    State   of  California,  the   plaintiff  performed 
work  and  labor  and  rendered  services  for  the   defendant 
at  its  special  instance  and  request  as  its  manager. 

3.  That  for  said  work,  labor  and  services  the  said  de 
fendant  promised  and  agreed  to  pay  the  said  plaintiff  the 
sum  of  three  hundred  and  fifty  dollars  per  month. 

4.  That  the  defendant  has  not  paid  the  same,  nor  any 
part  thereof. 

Wherefore,  plaintiff  prays  judgment  against  the  said 
defendant  for  the  sum  of  three  hundred  and  fifty  ($350) 
dollars,  with  interest  thereon  at  the  rate  of  seven  per  cent 
per  annum  from  the  31st  day  of  July,  A.  D.  1892,  and  for 
costs  of  suit. 
I56  REDDY,  CAMPBELL  &  METSON. 

Attorneys  for  Plaintiff." 

(Witness  is  handed  a  second  complaint  in  an 
action  instituted  by  him  against  the  History 
Company.) 

WITNESS  :  I  verified  that  complaint  about  the 
day  it  bears  date. 

Said  complaint  was  filed  in  the  Superior  Court 
of  the  City  and  County  of  San  Francisco,  State 


55 

157  °^  California,  and  is  in   the    words   and   figures 
following,  to  wit : 

"In  the  Superior  Court  of  the  State  of  California  in  and 
for  the  City  and  County  of  San  Francisco. 

N.  J.  STONE, 

vg  Plaintiff. 

THE  HISTORY  COMPANY  (a  Corporation), 

Defendant. 

Plaintiff  complains  of  defendant  above  named  and  for 
cause  of  action  alleges: 

158  1.     That  the  said  defendant,  the  History  Company,  ia 
and  was  at  all  the  times  herein  mentioned,  a  corporation 
duly  organized  and  existing  under  and  by  virtue  of  the 
laws  of  the  h'tate  of  California. 

2.  That  between  the  31st  day  of  July,  1892,  and  the 
first  day  of  September,  1892,  at  the  City  and    County  of 
San    Francisco,    State   of  California,    the   plaintiff  per 
formed  work  and  labor,  and  rendered  services  for  the  de 
fendant  at  its  special  instance  and  request  as  its  manager. 

3.  That  for  said  work,  labor  and  service  the  said  de 
fendant  promised  and  agreed  to  pay  the  said  plaintiff  the 
sum  of  three  hundred  and  fifty  dollars  per  month. 

4.  That  the  defendant  has  not  paid  the  same,  nor  any 

159  part  thereof. 

Wherefore,  plaintiff  prays  judgment  against  the  said 
defendant  for  the  sum  of  three  hundred  and  fifty  dollars 
($650.00)  with  interest  thereon  at  the  rate  of  seven 
per  cent  per  annum  from  the  31st  day  of  August,  A.  D. 
1892,  and  for  costs  of  suit. 

REDDY,  CAMPBELL  &  METSON, 

Attorneys  for  Plaintiff." 

Witness  continuing  :     I  did    not  say   I  had  a 
conversation  with  Dorland  in  January.     I  said  it 


56 

160  was  in  the  early  part  of  1893.  I  could  not  tell 
whether  it  was  in  the  month  of  January  or  Feb 
ruary.  I  could  not  state  within  sixty  days  of  the 
time  it  took  place.  I  have  no  way  by  which  I 
could  fix  the  time.  I  should  think  it  was  a 
month  or  six  weeks  after  the  time  I  went  there 
and  found  my  desk  in  a  place  where  I  couldn't 
work.  I  was  at  the  History  Company's  office 
nearly  every  day  up  to  the  time  the  conversation 
with  Dorland  took  place.  I  do  not  know  exactly 
when  that  was.  After  that  time  I  engaged  in 
other  business.  For  a  little  while  I  was  giving 
my  attention  to  the  publication  of  a  work  called 
"Femina,"  for  two  or  three  months.  I  think  it 
was  May,  June  and  July,  somewhere  along  there. 
During  all  that  time  I  considered  that  I  was  still 
engaged  under  this  contract  with  the  History 
Company,  and  did  very  little  in  relation  to  the 
"  Femina  "  business  I  started  in  to  publish  that 
book  and  then  decided  not  to.  This  was  in  1893. 
I  was  to  have  an  interest  in  the  publication  of 
the  "  Femina "  book ;  I  was  in  there  in  the 
capacity  of  having  an  interest  in  it  ;  then  I  ar 
rived  at  the  point  where  I  disposed  of  my  inter 
est  in  it.  I  did  have  an  interest  in  it  for  a  time. 
My  interest  was  one-half  and  the  other  one-half 
was  owned  by  Dr.  Miller.  I  think  my  interest 
began  somewhere  in  May  or  June.  It  ran  along 


57 

163  about  three  months ;  I  would  not  be  positive  as 
to  the  date.  There  were  no  writings  to  define 
my  interest ;  we  had  not  drawn  papers  between 
ourselves.  I  devoted  two  or  three  months  to  the 
business.  Considerable  of  that  time  I  was  about 
the  History  Company  building,  but  I  did  not  go 
there  regularly.  I  was  devoting  some  of  my 
time  to  that  business  during  the  time  covered  by 
this  suit.  I  think  I  had  ceased  my  engagement 
with  Dr.  Miller  at  the  time  the  complaint  in  this 
action  was  filed,  September  7th,  1893.  About 
two  or  three  months  of  the  time  covered  by  this 
suit,  I  was  engaged  in  the  publication  of  "Fe- 
uiina."  I  had  known  Miller  for  a  number  of 
years.  I  do  not  know  when  I  first  consulted  with 
him  about  the  publication  of  the  book ;  I  think 
about  May,  1893. 

Q.     You  have  testified  you  went  into  the  busi 
ness  in  May,  1893.     Did  you  have  a  preliminary 
165  discussion  with  Miller  ? 

A.  I  had  talked  with  him  several  times,  yes. 
I  went  into  the  business  a  few  weeks  after  I  be 
gan  the  discussion  of  the  enterprise  with  him.  I 
had  had  conversations  with  him  a  number  of  times, 
it  might  have  been  as  far  back  as  a  month  or  two  ; 
it  may  have  been  as  far  back  as  April  or  March, 
I  don't  think  further  than  that,  but  I  would  not 
say.  My  impression  is  it  was  not  further  back 


58 

1 66  than  March.  I  have  known  him  a  number  of 
years  and  have  seen  him  in  the  office  of  the  His 
tory  Company.  He  never  went  there  to  see  me 
about  the  publication  of  "Femina"  by  the  His 
tory  Company.  He  did  not  come  to  see  me  in 
the  office  of  the  History  Company  in  July,  1892, 
in  reference  to  the  publication  of  that  book.  I 
am  positive  I  did  not  tell  him  in  the  office  of  the 
History  Company  in  July,  1892,  that  I  would 

advise  him  not  to  have  his  book  published  by  the 

167 

'    History  Company  as  it  was  about  to  go  to  pieces. 

I  never  at  any  time  made  him  a  statement  that 
it  was  about  to  go  to  pieces,  and  that  I  would  ad 
vise  him  not  to  have  anything  to  do  with  it. 
While  1  was  at  work  on  this  book  of  "  Femina,"  I 
considered  the  contract  set  out  in  the  complaint  in 
this  action  as  binding  upon  me.  I  considered  that 
the  History  Company  was  entitled  to  call  on  me 
any  time.  I  have  always  been  ready  and  am 
ready  to-day  to  render  services  and  consider  that 
the  History  Company  was  entitled  to  call  upon 
me  any  day  to  perform  services  as  manager  for  it, 
and  it  was  so  understood  by  Dr.  Miller  that  I  would 
make  no  arrangement  with  him  that  was  not  sub 
ject  to  the  call  of  the  History  Company.  I  con 
sidered  that  all  the  time  I  was  with  him,  this 
contract  was  remaining  in  full  force  and  effect  for 
its  full  term,  and  that  the  History  Company  was 
entitled  to  call  upon  me  at  any  time. 


59 

169       (Witness  is  shown   press   copy  of  a  letter  ad 
dressed  to  Professor  J.  R.  Campbell.) 

Witness  continuing  :  "This  is  a  press  copy  of  a 
letter  written  by  me  as  manager  of  the  'Femina' 
Company,"  and  the  following  portion  of  such  let 
ter  is  offered  and  read  in  evidence: 

"1018  VALENCIA  ST.,  SAN  FRANCISCO,  CAL. 
MY  DEAR  SIR  AND  FRIEND: 

Your  esteemed  favor  of  June  8th  reached  me  in  due 
course,  and  I  was  very  glad  to  hear  from  you.  You  will 
note  by  the  above  that  I  am  no  longer  at  the  History 
1 7°  Company.  I  have  an  enterprise  on  hand  to  which  I  shall 
devote  my  entire  attention  just  as  soon  as  I  am  free  from 
the  History  Company  and  I  hope  thac  will  not  be  very 
long,  for  I  expect  to  get  my  second  and  large  suit  to  trial 
within  the  next  few  days;  at  any  rate,  I  propose  to  free 
myself  so  that  I  can  do  business  again." 

Q.  You  say,  notwithstanding  that  declaration 
to  your  friend,  Professor  Campbell,  you  under 
stood  you  were  in  the  employment  of  the  History 
Company  and  liable  for  a  period  of  six  or  seven 
years  after  the  writing  of  this  letter,  to  be  called 
upon  to  perform  services  as  manager  ? 

A.  Any  day  in  the  world  when  the  History 
Company  called  upon  me  to  come,  I  was  ready  to 
go  ;  yes,  I  said  I  hoped  to  be  free,  and  I  hope  so 
still. 

(A  press  copy  of  a  letter  written  to  Mrs.  L. 
Owen  is  shown  witness.) 

Witness  continuing  :  The  signature  to  that  let 
ter  is  mine.  This  is  a  copy  of  a  letter  addressed 


6o 

172  by  me  to  Mrs.  Owen  on  July  7th,  1893.  This 
was  the  month  of  July,  1893,  and  I  was  endeavor 
ing  to  obtain  compensation  from  the  defendant  in 
this  suit. 

(A  portion  of  the  letter  referred  to  was  offered 
and  read  in  evidence,  as  follows :) 

"  I  am  pleased  to  tell  you  that  everything  looks  well, 
ai  d  best  of  all,  that  I  am  now  free  so  that  I  can  devote 
my  whole  time  to  the  business  without  any  interference  or 
trouble.  We  have  plenty  of  books  on  hand  and  can  fill 
jy-  orders  promptly.  Our  second  lot  of  bottles  have  arrived, 
so  there  will  be  no  delay  as  regards  medicines.  We  are, 
in  fact,  supplied  with  everything  but  the  thermometer, 
and  this  will  be  here  soon." 

Q.  Notwithstanding  this  declaration  to  Mrs. 
Owen,  in  this  letter,  you  claim  you  were  then  in 
the  employment  of  the  History  Company  under 
this  contract  ? 

A.     Yes,  it  was  so  understood. 

(Press  copy  of  another  letter  shown  witness.) 
174       WITNESS  :     This  letter  was  written  by  me. 

(A  portion  of  the  letter  dated  July  10th,  1893, 
addressed  to  Honorable  E.  W.  Davis,  Santa  Rosa, 
is  offered  and  read  in  evidence,  as  follows :) 

"  Dear  Mr.  Davis: 

As  you  will  notice  by  this  letter 
head,  I  am  free  again  to  engage  in  business  and  I  can  as 
sure  you  it  is  very  gratifying  to  me." 

Q.     And  you  were  seeking  compensation  at  the 


6i 

175  rate  of  over  ten  dollars  a  day  from  defendant  for 
twenty-one  days  more  of  the  month  of  July  ? 

A.  I  stood  ready  to  perform  my  duties  at  all 
times,  and  stand  there  to-day. 

Witness  continuing .  I  could  not  tell  you 
when  the  arrangement  between  Miller  and  me 
came  to  an  end  ;  it  came  to  an  end  because  I  de 
cided  not  to  go  on  with  the  business.  It  termin 
ated  by  selling  my  interest  to  Miller.  No  part 
nership  existed  between  us.  We  had  a  verbal 

176 

understanding  ;  we  never  consummated  it ;  it  was 

simply  a  verbal  understanding.  The  verbal  un 
derstanding  was  that  there  was  to  be  a  partner 
ship  at  some  time  in  the  future,  but  it  never  was 
done  in  fact. 

(Paper  handed  to  the  witness  :) 

I  have  seen  this  paper  before  ;  the  signature  to 
it  is  mine. 

(The  paper  is  offered  in  evidence  and  read.  It 
177  is  in  the  words  and  figures  following,  to  wit :) 

"  WHEREAS,  the  partnership  existing  between  John  A. 
Miller,  party  of  the  first  part,  and  Nathan  J.  Stone,  party 
of  the  second  part,  heretofore  existing  under  the  firm 
name  of  The  Femina  Company,  has  been  dissolved  by 
mutual  consent,  and  said  party  of  the  second  part  for  a 
valuable  consideration,  the  receipt  whereof  is  hereby 
acknowledged,  has  sold,  transferred  and  set  over  unto  the 
party  of  the  first  part  all  the  right,  title  and  interest  of 
the  party  of  the  second  part  in  and  to  all  the  property 
owned,  used  and  controlled  by  and  in  said  partnership 


62 

178  and  the  business  thereof,  including  all  books,  electrotype 
plates,  charts,  medicines,  medical  appliances,  papers,  cor 
respondence,  office  furniture,  moneys  due  from  agents, 
good- will,  etc.,  used  in  and  belonging  to  the  said   The 
Femina  Company;  and  each  of  said  parties  having  set 
tled,  satisfied  and  adjusted  all  claims  and  demands  upon 
the  other; 

Now  THEREFORE,  in  consideration  of  the  premises,  each 
of  the  said  parties  does  hereby  for  himself  and  his  legal 
representatives  release  and  absolutely  and  forever  dis 
charge  the  other  of  and  from  all  claims  and  demands, 
actions  and  causes  of  actions  of  every  name  and  nature, 
so  that  neither  of  them  shall  have  any  claim  on  the  other, 

179  directly  or  indirectly  on  any  contract  or  supposed  liability 
or  thing  heretofore  undertaken,  done,  or  omitted  to  be 
done  from  the  beginning  of  the  world  to  this  day. 

In  witness  whereof,  the  said  parties  have  hereunto 
set  their  hands  in  duplicate  this  21st  day  of  October,  1893. 

JOHN  A.  MILLER 
N.  J.  STONE. 
In  the  presence  of: 
W.  A.  METSON 
F.  W.  VAN  REYNEGOM." 

[Endorsed:]  "  Mutual  Release  between  John  A.  Miller 
and  N.  J.  Stone." 

1 80  Witness  continuing  :     I  say  there  never  was  any 
partnership   between   us.     There  never  was  any 
agreement   or    anything    submitted     in    writing. 
That  term  was  used,  I   suppose,  as  a  legal  term 
in  dissolving  and  winding  up  the  matter.     I  paid 
a  certain  amount  of  money  and  he  paid  a  certain 
amount  of  money. 

(Another  paper  shown  witness.) 
WITNESS  :     That    paper  was  also  executed  by 
me. 


63 

181  (The  paper  was  offered  and   read  in  evidence 
and  is  in  the  words  and  figures  following,  to  wit:) 

l<  THIS  INDENTURE,  made  this  21st  day  of  October,  A. 
D.  1893,  by  and  between  N.  J.  Stone,  of  the  City  and 
County  of  San  Francisco,  State  of  California,  party  of  the 
first  part,  and  J.  A.  Miller,  of  the  same  place,  party  of 
the  second  part, 

WITNESSETH:  That  for  and  in  consideration  of  the  sum 
of  $10  lawful  money  of  the  United  States  to  him  in  hand 
paid,  the  receipt  whereof  is  hereby  acknowledged,  the 
party  of  the  first  part  does  hereby  sell,  assign,  transfer 
and  set  over  unto  the  party  of  the  second  part  all  of  his 

182  right,  title  and  interest  in  and  to  all  of  the  partnership 
property  owned  or  controlled  by  the  partnership  heretofore 
existing  between  the  parties  hereto,  under  the  firm  name 
and  style  of  the  Femina  Company,  including  all  books, 
electrotypes,    plates,    charts,    medicines,   medical   appli 
ances,  papers,  correspondence  and  office  furniture,  money 

due  from  agents,  and  the  good-will  of  the  business  here 
tofore  carried  on  by  said  Femina  Company,  with  all  the 
appurtenances  thereto.  It  being  understood  and  agreed 
between  the  parties  hereto  that  the  said  party  of  the 
second  part  accepts  said  property,  and  agrees  to  pay  and 
discharge  all  debts,  claims  of  any  kind,  nature  or  char 
acter  now  existing  against  said  Femina  Company,  as 
x°3  shown  by  the  statement  annexed  hereto. 

In  witness  whereof,  the  said  parties  have  hereunto  set 
their  hands  and  affixed  their  seals  this  21st  day  October, 

1893. 

Executed  in  duplicate, 

N.  J.  STONE 
JOHN  A.  MILLER. 
In  the  presence  of: 
W.  A.  METSON. 
F.  W.  VAN  REYNEGOM. 

The   following   is   a  list  of  all   the   bills  against  the 
Femina  Company  of  which  N.  J.  Stone,  the  party  of  the 


64 

184  first  part,  has  any  knowledge,  and  which  are  referred  to 
in  theBill  of  Sale  to  which  this  is  attached. 

Payot,  Upham  &  Co $     2.01 

Whitall,  Tatum  &  Co 93.41 

Whitall,  Tatum  &  Co 199.71 

Carrick,  Williams  &  Wright 3.00 

Payot,  Upham  &  Co 75 

Payot,  Upham  &  Co 12.25 

F.G.Norman.  . .-. .  2.90 


$305.03 

Together  with  bills  for  cartage,  rent  of  office,  amount 
unknown  to  the  party  of  the  first  part." 

-o-       [Endorsed:]     "Agreement   between   Nathan   J.  Stone 
5  and  John  A.  Miller." 

Witness  continuing  :  I  must  have  been  in 
business  with  Miller  as  long  as  two  or  three 
months,  and  it  might  have  been  six  months.  I 
do  not  think  it  began  as  early  as  the  month  of 
January,  1893  ;  I  am  quite  sure  it  did  not.  That 
would  be  my-  impression.  The  business  of  the 
Femina  Company  was  out  on  Valencia  Street,  and 
in  my  opinion  we  were  there  three  or  four  months. 
186  I  left  there  finally  when  those  papers  were  signed. 
I  was  there  only  off  and  on  for  two  or  three  weeks 
before  those  papers  were  signed ;  I  was  there 
only  occasionally.  My  name  was  on  the  door 
there  as  manager  all  the  time  we  were  there.  I 
may  have  been  there  a  week  or  more  before  my 
name  appeared  on  the  door  as  manager  ;  I  was 
not  there  a  month  or  two  as  manager  before  that, 
and  that  impression  is  very  firmly  fixed  on  my 


65 

187  mind.  The  last  time  I  saw  Miller  before  going 
to  the  office  of  the  Femina  Company  to  become 
manager  of  that  business,  was  at  his  house.  The 
Femina  Company  was  engaged  in  the  publication 
of  a  literary  work  ;  and  the  History  Company 
was  also  engaged  in  the  publication  of  literary 
works.  I  never  took  Miller  to  any  other  concern 
to  have  his  book  published,  nor  did  I  ever  take 
him  to  any  other  publishing  house  ;  I  never  took 

him  to  the  office  of  the  Pacific  Publishing  Com- 

188 

pany.     That   Company    was  selling   subscription 

books,  and  I  think  was  composed  of  A.  S.  Latham 
and  Mr.  Hebert.  The  partnership  papers  are  so 
drawn.  I  was  in  the  habit  of  going  to  the  office 
of  that  Company  occasionally.  I  never  took  Dr. 
Miller  to  Mr.  Hebert  at  the  office  of  the  Pacific 
Publishing  Company  while  I  was  in  the  employ 
ment  of  the  History  Company.  I  never  saw 
Hebert  and  Miller  together.  I  never  in  my  life 
1 80  sP°ke  to  Miller  about  Hebert  and  Latham.  In 
these  papers  which  have  been  read,  there  is  some 
reference  to  medicine  and  medical  appliances ; 
they  were  medicines  put  up  by  Dr.  Miller,  and  I 
was  selling  them  in  connection  with  the  publica 
tion,  with  the  book.  When  the  arrangement  was 
made  between  Miller  and  me,  I  don't  know  that 
there  was  any  definite  arrangement  as  to  the  time 
which  it  was  to  last.  We  never  made  any  ar- 


66 

190  rangement ;  we  never  completed  any  arrange 
ment  ;  we  never  entered  into  any  partnership  ; 
never  drew  any  papers  ;  never  had  any  under 
standing. 

Q.  In  this  particular  case  you  dissolved  a 
partnership  that  never  existed  ? 

A.  That  was  the  term  used.  The  under 
standing  between  Miller  and  me  was  that  we 
were  to  divide  the  profits  of  the  business  between 
us,  and  we  were  to  share  the  losses  between  us. 
I  had  had  some  experience  in  business.  I  say, 
no  arrangement  was  ever  completed  between 
Miller  and  myself  with  regard  to  profits  or 
losses,  or  any  document  drawn  in  any  way,  shape 
or  manner. 

Q.  You  mean  to  say  you  put  yourself  in  the 
position  on  the  21st  of  October,  1893.  of  having 
executed  a  solemn  document  declaring  a  partner 
ship  was  dissolved,  which  you  say  never  existed  ? 
102  A.  That  is  the  term  which  was  used.  I  say 
we  never  had  made  any  agreement,  or  never  had 
submitted  anything  to  writing.  Those  things 
were  not  fixed  between  us.  There  wasn't  any 
arrangement.  I  did  not  draw  those  papers.  I 
signed  them,  as  I  supposed,  necessary  papers  in 
order  to  protect  me  hereafter  ;  to  wind  up  the 
proposition.  I  had  bought  some  merchandise 
that  wasn't  paid  for,  and  my  name  was  connected 


67 

193  with  the  enterprise.  I  thought  by  signing  these 
I  would  not  become  liable  for  anything  because  it 
simply  stated  Dr.  Miller  was  to  pay  the  debts. 
That  was  put  in  the  document  that  was  drawn 
between  us,  and  considered  best  to  be  drawn  and 
signed. 

Q.  The  liability  you  wanted  to  be  released 
from  was  future  liability  in  the  partnership  ? 

A.     No,  sir;   it  was  to  wind  up.     I  wanted  to 

be  released  from  any  liability  that  might  come 
104. 

up   in  the  future.     The  last  time  I  devoted  to 

that  business  was  a  few  weeks  before  that  paper 
was  signed. 

Q.  Up  to  that  time  you  had  been  quite 
actively  engaged  ? 

A.  Well,  the  books  will  show.  He  kept 
books  and  they  would  show  about  the  time.  As 
an  employee  of  the  History  Company  I  had  charge 
and  was  general  manager,  and  had  charge  of  it  to 
IQC  a  very  full  extent  until  1889;  after  that,  my 
duties  were  limited,  that  is,  I  was  circumscribed 
somewhat  in  them.  I  did  not  say  that  defendant 
had  done  everything  required  to  be  done  by  him 
under  the  agreement.  Outside  of  the  payment  of 
my  salary,  since  May  or  June,  1892,  Mr.  Ban 
croft  had  not  done  everything  which  he  agreed 
to  do  under  this  agreement.  He  circumscribed 
my  duties.  The  scope  of  my  duties  are  not  as 


68 

196  large  as  it  agreed  they  should  be,  and  they  are 
not  as  large  as  they  were.  But  I  don't  remem 
ber  anything  else.  I  will  not  say  there  was  not. 
I  don't  remember ;  I  cannot  state  anything  else 
to  the  jury  now.  This  salary  of  $350  per  month 
which  was  paid  me  by  the  History  Company  for 
a  period  of  seven  years  was  paid  me  by  the  treas 
urer  of  the  company.  I  knew  it  was  being^ 
charged  on  the  books  of  the  History  Company  to 
the  salary  account.  It  was  not  charged  to  defen- 
dant,  and  his  name  was  not  connected  with  it.  I 
was  quite  familiar  with  every  detail  of  the  busi 
ness.  The  treasurer  charged  my  salary  to  the 
salary  account.  I  was  quite  familiar  with  all 
the  details  of  the  business  and  knew  my  salary 
was  being  charged  up  and  carried  as  a  salary  ac 
count.  It  was  one  of  the  expenses  that  were 
deducted  before  defendant  or  I  participated  in 
any  profits.  Subsequent  to  the  1st  of  September,. 
1892,  I  went  to  the  office  of  the  History  Com 
pany  early  every  day.  I  was  not  absent  unless 
detained  by  sickness.  I  was  there  most  of  the 
time  each  day.  I  went  there  about  eight  o'clock 
in  the  morning.  Subsequent  to  the  1st  of 
October,  1892,  I  averaged  several  hours  a  day 
there.  I  did  not  get  there  at  eight  o'clock  dur 
ing  the  month  of  October  every  day ;  except 
wfren  I  was  down  at  the  farm  I  was  there  at 


69 

199  eight  o'clock.  When  I  was  at  the  farm  I  couldn't 
get  there  until  nine  o'clock.  I  don't  know 
whether  I  was  at  the  farm  during  October  or 
not ;  if  I  was  not  at  the  farm  I  almost  invariably 
arrived  at  the  office  at  eight  o'clock  or  there 
abouts  and  remained  until  evening.  I  remained 
in  the  evening  until  about  half-past  four  or  five 
o'clock,  somewhere  along  there.  During  the 
month  of  October,  1892,  I  spent  six  or  seven 

hours  a  day  in  the  office,  or  more  than  that.      I 

200 

did    not    keep   any    record  of    it.      During   the 

month  of  November  I  stayed  about  the  same 
time.  Not  so  much  during  the  month  of  De 
cember.  During  the  month  of  November 
I  was  there  sitting  still  most  of  the  time. 
The  perambulations  of  my  desk  began  in  July. 
It  wasn't  moved  but  once  while  I  was  there. 
That  was  when  defendant  pushed  it.  They 
took  advantage  of  my  absence  to  move  it.  De- 
2OI  fendant  pushed  the  desk  in  July,  but  I  could 
not  tell  the  date.  I  continued  to  go  there  every 
day  after  that  and  discharge  my  duties  to  the 
best  of  my  ability.  My  desk  was  taken  upstairs 
towards  the  latter  part  of  December,  before  it 
was  placed  in  the  position  where  I  could  not 
work,  and  was  in  a  draught.  It  was  taken  up, 
stairs  and  brought  back  and  put  in  that  place. 
The  duties  I  performed  in  September,  October 


2O2  and  November  were  sitting  around  waiting.       It 
was  rather  tedious,  and  not  as  easy  as  managing 
the  business ;  it  was  very  little  work.       I  would 
have  been   willing  to  have  gone   there  at  eight , 
o'clock  in  the  morning  and  stayed  until  five  o'clock 
at  night  if  my  salary  had  been  paid,  but  I  would 
rather  have  managed  the  business.       The  reason 
I  left  was   not  because  my  salary   was  not  paid. 
My    desk  was    put  there,    my   chair   was    taken 
away,  and  ink  was  poured  over  my  desk,  and  I 
^  was  subjected  to  every  indignity  that  it  was  pos 
sible  for  one  man  to  inflict  upon  another.     I  con 
sidered  it  wasn't  in  duty  bound  to  my  family  and 
myself  to  stay  there  in  that  draught  and  get  a 
cold,   and    I  so  informed    Mr.    Dorland    that    I 
couldn't  stay  there  unless  he  changed  the  desk. 
I    couldn't    sit  on  the  desk.      At  that  time  my 
desk  was  out  near  the  side  door  at  the  head  of 
the  stairs.     The  rollers  were  not  put  back  on  the 
204  desk,  they  are  not  put  back  to  this  day  to  my 
knowledge.     I  could  have  moved  the  desk  with 
extreme  difficulty  if  I  had  seen  fit,  but  there  was 
no  place  to  move  it  unless  I  got  up  in  front,  and 
Mr.  Dorland  forbade  my  going  there.     Mr.  Dor- 
land  is  dead.      I  was  told  by  Morrison  I  had  no 
right  there.       This  was  in  July,  1892,  but  not 
withstanding  that  I   continued   to  go  there  and 
discharge  my  duties  long  after  that.     I  did  not 


7* 

205  act  upon  that  suggestion  made  to  me  by  Morri 
son.  With  the  exception  of  that  statement  made 
to  me  by  Morrison,  I  don't  remember  that  any 
living  witness  told  me  that  any  obstacle  would  be 
thrown  in  my  way  there. 

RE-DIRECT  EXAMINATION. 

I  found  the  obstacles.  They  were  sufficient  to 
prevent  me  from  doing  the  work  I  had  been  doing. 
In  relation  to  the  business  with  Miller,  I  was 
simply  engaged  in  negotiating  about  the  business, 
was  about  to  enter  under  a  contract,  and  during 
the  negotiations  I  had  purchased  some  things  and 
became  liable  for  them  under  the  expectation  of 
-making  a  contract  with  him.  I  never  did  com 
plete  any  contract  with  him,  and  at  a  certain 
stage  of  the  negotiations,  I  concluded  not  to  enter 
into  the  business  or  any  engagement,  arid  having 
reached  that  conclusion  I  signed  some  papers,  the 
drawing  of  which  I  entrusted  to  my  attorneys 
and  the  attorney  for  Miller,  and  the  papers  that 
are  introduced  here  are  what  I  was  requested  to 
sign  by  my  attorney  and  others,  and  that  is  the 
reason  I  signed  it,  trusting  in  their  judgment  to 
protect  me  from  all  liability  in  my  negotiations. 
The  papers  were  made  by  my  counsel  and  signed 
them  at  the  request  of  my  counsel  in  the  presence 
of  both  my  counsel  and  the  counsel  for  Miller. 


72 

2o8  Question  by  plaintiff's  counsel:  State  whether 
you  relied  upon  your  own  judgment,  or  the  judg 
ment  of  your  counsel  in  signing  the  document 
containing  the  words  about  the  partnership? 

This  question  was  objected  to  by  defendant  on 
the  ground  that  it  was  immaterial. 

The  objection  was   overruled  by  the  Court,  to 
which  ruling  defendant  excepted. 
Exception  No.  17. 

A.  I  relied  entirely  upon  the  judgment  and 
advice  of  my  counsel.  I  understand  the  differ 
ence  between  an  ostensible  partnership  and  one 
in  fact. 

Question  by  plaintiff's  counsel  :  State  the 
reasons  why  you  signed  those  papers  in  full  ? 

A.  I  signed  that  paper  because  my  attorneys 
requested  me  to  do  so.  I  did  not  read  either  of 
them  before  I  signed  them. 

Witness  continuing  :  I  employed  counsel  to 
2io  bring  those  two  suits  against  the  History  Com 
pany,  the  complaints  in  which  have  been  offered 
in  evidence.  They  advised  me  to  bring  the  suits 
against  that  company. 

Question  by  plaintiff's  counsel :  State  whether 
they  afterwards  advised  you  that  was  a  mistake  ? 

This  question  was  objected  to  by  defendant  on 
the  ground  that  the  suit  is  still  pending  against 
the  History  Company,  as  they  have  never  been 


73 

2ii  dismissed.  The  presumption  is  he  intends  to 
prosecute  it.  The  witness  cannot  testify  to  in 
structions  given  to  him  by  his  counsel.  The  ob 
jection  was  overruled  by  the  Court,  to  which 
ruling  defendant  excepted. 
Exception  No.  18. 

A.     Yes. 

Question  by  plaintiff 's  counsel :  Why  did 
you  bring  this  suit,  knowing  that  you  had  com 
menced  two  suits  against  the  History  Company 

25  Jt  2$ 

for  a  portion  of  the  money  involved  in  this  ? 

This  question  was  objected  to  by  defendant  on 
the  ground  that  it  was  irrelevant  and  immaterial. 

The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  excepted. 

Exception  No.  19. 

A.  The  counsel  that  brought  these  suits 
against  the  History  Company  for  me,  afterwards 
advised  me  that  these  suits  were  against  the 
2I3  wrong  party,  and  then  commenced  this  suit  for 
me,  and  I  followed  the  advice  of  my  counsel  in 
the  matter  as  to  who  was  liable,  and  relied  upon 
that. 

Witness  continuing  :  I  performed  the  services 
which  I  did  perform  for  the  History  Company  in 
pursuance  of  my  agreement  with  the  defendant. 
I  understood  by  the  agreement  that  the  business 
was  to  be  conducted  as  the  History  Company  and 


74 

314  that  I  was  to  perform  these  services  for  defendant 
under  authority  from  that  Company.  All  I  did 
was  according  to  my  judgment  under  and  in  pur 
suance  of  this  contract.  I  have  never  made  any 
contract  or  agreement  with  the  History  Company 
in  any  shape  or  form.  I  was  elected  Vice-Presi 
dent  of  that  company.  I  understood  I  was  to 
have  the  management  of  that  company  under 
this  agreement. 

Q.  And  in  order  to  perform  your  services  for 
and  in  the  name  of  the  History  Company,  under 
this  agreement,  how  could  you  get  any  authority 
to  do  it  except  by  the  by-laws?  Did  you  ever 
have  any  ? 

A.     Not  any. 

(The  following  by-laws  of  the  History  Com 
pany  were  then  offered  and  read  in  evidence  by 
plaintiff:) 

"  ARTICLE  7. 

PRESIDENT. 

Section  1.  The  President  shall  preside  at  all  meetings 
of  the  Board  of  Directors  and  stockholders.  He  shall 
sign  all  certificates  of  stock,  and  all  contracts  and  other 
instruments  in  writing,  which  have  first  been  approved 
by  the  Board  of  Directors.  He  shall  call  the  Directors 
together  whenever  he  deems  it  necessary.  He  shall  have, 
subject  to  the  advice  and  control  of  the  Directors,  the 
general  superintendence  of  the  affairs  of  the  Company, 
and  he  shall  perform  such  other  duties  as  may  be  required 
by  the  Board  of  Directors. 


75 

217       ARTICLE  8. 

VICE-PRESIDENT. 

Section  1.  In  the  absence  of  the  President,  the  Vice- 
President  shall  perform  his  duties,  and  he  shall  perform 
such  other  duties  as  may  be  required  by  the  Board  of 
Directors." 

Defendant  has  been  President  of  the  History 
Company  from  the  date  of  its  incorporation  up  to 
the  present  time,  unless  he  has  recently  resigned. 
When  these  by-laws  were  adopted,  N".  J.  Stone, 
O.  A.  Stone,  H.  H.  Bancroft,  M.  G.  Bancroft 
and  Kate  Bancroft  were  the  stockholders.  O. 
A.  Stone  was  my  wife,  and  M.  G.  Bancroft  and 
Kate  Bancroft  were  the  wife  and  daughter,  re 
spectively,  of  defendant.  There  was  no  stock 
issued  at  the  time  the  by-laws  were  adopted  ;  it 
was  issued  shortly  after.  I  was  to  have  ten  per 
cent  of  the  stock.  The  defendant  owned  the 
whole  of  it  at  the  time  he  agreed  to  convey  ten 
per  cent  to  me.  There  were  10,000  shares  in  the 
2Io  company  of  the  par  value  of  $50  each,  and  I  had 
ten  per  cent  of  that.  My  wife  had  ten  shares 
which  were  given  her  to  qualify  her  to  act  as  a 
director.  Mrs.  and  Miss  Bancroft  had  ten  shares 
each,  also  given  to  them  to  qualify  them  to  act  as 
directors.  I  learned  this  from  the  defendant. 
Defendant  and  I  at  that  time  directed  the  affairs 
of  the  company.  The  by-laws  providing  for  a 
salary  of  $350  per  month  for  the  salary  of  the 


76 

220  Vice-President  was  repealed,  I  think,  in  June, 
1889.  I  received  $350  per  month  salary  during 
May,  June  and  July,  1886,  before  the  Articles  of 
Incorporation  were  drawn. 

Q.     Who  paid  you  that  money  ? 

A.  The  bank  account  was  opened  for  the 
History  Company  by  H.  H.  Bancroft,  with  the 
Tallant  Banking  Company.  I  obtained  the 
money  by  a  ckeck  from  defendant.  Nobody  else 

was  authorized  to  sign  the  check  until  after  the 
221 

incorporation.     When  we  drew  money  from  the 

bank,  defendant  signed  the  checks  up  to  the  time 
of  the  incorporation. 

Q.  After  the  incorporation,  did  you  get  your 
$350  ;  how  did  you  get  that  money  ? 

A.  The  checks  were  drawn  by  the  History 
Company,  by  H.  H.  Bancroft,  President ;  or  by 
the  History  Company,  N.  J.  Stone,  Vice-Presi 
dent,  and  paid  by  the  Treasurer.  That  was  up 
222  ^0  the  time  of  the  repeal  of  the  by-law  allowing 
the  Vice-President  $350  a  month.  I  received 
salary  after  the  repeal  of  the  by-law  allowing  the 
Vice-President  $350  per  month  just  the  same  as 
before  ;  it  was  paid  by  the  Treasurer.  There  was 
never  any  other  resolution  or  action  that  I  am 
aware,  fixing  the  salary  of  the  Vice-President  by 
the  Board  of  Directors. 

Q.     Then  the  fact  is,  from  the  time  of  the  re- 


77 

223  Peal  °f  that  by-law,  you  received  your  money,  the 
same  amount,  and  by  the  same  means,  up  to  the 
time  when  they  refused  to  pay  it  ? 

A.     To  June  30th,  1892. 

Q.  Do  you  know  whether  the  Board  of  Direc 
tors  and  Mr.  Bancroft  knew  how  much,  and  how 
you  were  receiving  this  money  ? 

A.     Yes,  sir. 

THE  COURT  :     You  say  the  salary   check  was 

drawn  either  by  you  or  by  defendant  ? 

224 

A.     No,  sir ;  I    said   all    checks  were  drawn, 

that  all  checks  of  that  department  after  the  incor 
poration,  were  signed  by  me,  nearly  all  the  checks 
for  the  Company ;  occasionally  Mr.  Bancroft 
would  sign  one. 

Q.  They  were  signed  either  by  you  or  by  Mr. 
Bancroft  ? 

A.     Yes,  sir. 

Mr.  REDDY  :  Q.  The  accounts  were  kept,  and 
22  c  they  would  show  how  much  you  were  receiving, 
and  the  checks  and  stubs  would  show  how  much 
money  you  received  from  the  bank  ? 

A.  Yes,  sir.  Defendant  and  the  Board  of 
Directors  knew  each  and  every  one  of  those  trans 
actions,  because  we  had  yearly  statements  show 
ing  the  entire  transactions  of  the  business,  just 
every  dollar  that  was  paid  out  and  who  it  was 
paid  to,  and  every  dollar  that  was  received.  De- 


226  fendant  and  the  Board  of  Directors  would  know 
how  the  money  was  drawn  out,  because  the  by 
laws  provided  for  it,  and  the  money  was  drawn 
out  strictly  in  accordance  with  those  by-laws. 
.The  money  was  drawn  according  to  the  original 
by-laws  ;  when  we  drew  it  from  the  bank,  all 
checks  were  signed  in  the  same  way,  up  to  the 
end  of  June,  1892.  At  that  time  this  notice  was 
served  upon  the  bank  that  I  was  not  authorized  to 
draw.  I  was  the  possessor  of  the  stock.  I  was 

22  7  the  holder  of  it.  Mr.  Bancroft  issued  it  to  me, 
and  handed  it  to  me  on  the  20th  of  October, 
,1886,  and  I  have  had  it  in  my  possession  ever 
since.  It  entitled  me  to  receive,  and  I  did  re 
ceive,  fifteen  per  cent. 

v»'Q-     Why  did  you  vote  to  take  your  name  off 
the  letter-heads,  if  it  was  disagreeable  to  you  ? 

This  question  was  objected  to  by  defendant  on 
the  ground  .that  it  was  irrelevant  and  immaterial. 

22g  The  objection   was  overruled  by  the   Court,  to 
which  ruling  defendant  excepted. 
Exception  No.  20. 

A.  Because  there  was  no  use  for  me  to  vote 
otherwise.  I  will  state  further  that  defendant  in 
his  own  handwriting  requested  that  this  resolution 
should  be  passed.  I  discussed  these  resolutions 
wi  h  defendant,  and  I  told  him  that  I  thought  it 
unwise,  and  would  be  an  injury  to  the  business, 


239  and  my  prediction  proved  true,  and  the  names  of 
the  officers  were  afterwards  put  back  on  the  paper, 
and  my  name  was  put  back,  and  at  his  request.  I 
told  him  I  would  vote  for  all  those  resolutions  if 
he  insisted  upon  them.  He  insisted  ;  he  wanted 
those  resolutions  passed,  and  I  think  I  seconded 
every  one  of  them  and  voted  for  every  one.  My 
name  was  afterwards  replaced  by  defendant  with 
out  any  resolution ;  there  was  a  resolution  requir 
ing  it  to  be  replaced  a  long  time  afterwards;  after 
^  they  found  the  names  were  being  used  and  no 
resolution  authorizing  them  ;  then  a  resolution 
was  passed,  and  after  that  resolution  was  passed 
my  name  was  again  removed,  but  the  names  of 
the  other  officers  were  not.  My  name  was  re 
moved  a  second  time  when  I  was  deposed.  After 
all  the  names  had  been  put  back  on  the  letter 
heads,  a  resolution  was  adopted  authorizing  them 
to  be  put  back  ;  they  were  put  back  before  any 
resolution  was  passed,  by  the  request  of  the  Presi 
dent.  The  men  in  charge  were  instructed  to 
print  letter-heads  with  the  names  on,  and  my 
name  was  put  on  by  that  order,  and  after  that  a 
resolution  was  passed.  My  name  was  not  again 
removed  until  I  was  deposed  in  May,  1892,  and 
after  that  it  was  not  allowed  to  appear  upon  the 
papers.  After  this  indignity,  and  the  removal  of 
my  name,  I  still  continued  to  perform  my  duties 


8o 

332  under  my  agreement.  In  May,  1889,  I  informed 
defendant  and  the  directors  that  I  would  do  what 
ever  defendant  directed,  and  I  obeyed  his  orders 
as  President  whenever  they  were  given  to  me  in 
any  form.  I  had  a  conversation  with  defendant 
at  the  Lick  House  three  or  four  months  ago.  He 
said  to  me  that  he  would  state  upon  his  honor 
that  I  had  done  for  the  History  Company  what 
he  believed  no  other  man  could  do;  that  he  hadn't 
anything  against  me,  and  wanted  me  to  take  the 

233  sale  of  this  book — the  Book  of  the  Fair— because 
he  believed  I  could  do  more  for  it  than  any  other 
living  man.  My  name  was  put  upon  the  door  as 
manager  of  the  business  with  Miller,  because  I 
was  the  party  there  and  had  charge  of  the  place, 
the  only  party  there.  While  there  I  wrote  the 
letters  which  have  been  offered  in  evidence  here. 
I  am  not  aware  that  that  interfered  in  any  way 
with  the  performance  of  my  duties  towards  the 
History  Company.  During  the  time  that  I  was 
deposed  and  my  desk  was  moved  about  from  place 
to  place,  I  was  practically  not  permitted  to  do  any 
thing  at  the  History  Company.  I  was  always 
willing  to  do  it.  There  were  no  dividends  paid 
by  the  History  Company  after  I  was  deposed. 
Morrison  still  holds  the  office  of  Vice- President, 
but  there  have  been  no  dividends.  I  said  in 
reply  to  counsel  on  the  other  side,  that  defen- 


8i 

235  dant  had  performed  all  the  acts  on  his  part  under 
this  agreement,  but  I  did  not  mean  to  include  in 
that  the  payment  of  my  salary.  I  was  to  be 
manager  of  the  History  business ;  that  was  the 
agreement.  I  afterwards  had  1 5  per  cent  of  the 
stock  of  the  History  Company.  The  agreement 
was  I  was  to  manage  the  matter.  Defendant 
allowed  me  to  manage  the  business,  except  the 
restrictions  which  1  have  mentioned.  He  pre- 

,  vented  me  from   managing  it  by  the  restrictions 
230 

which  I  have  mentioned,  and  in  the  manner  which 

I  have  stated. 

Q.  Did  you  ever  understand  you  were  dis 
charged  or  dismissed  from  that  service? 

~A.     I  never  was. 

Q.     You  never  were  dismissed? 

A.     No,  sir. 

Q.     That  is,  by  a  formal  statement  ? 

A.  No,  sir.  I  had  15  per  cent  interest  in  the 
337  History  Company  and  expected  to  be  allowed  to 
manage  it  the  entire  term  mentioned  in  the  agree 
ment  ;  I  expected  to  have  the  entire  and  absolute 
management  of  it.  Instead  of  that,  some  one 
else  was  put  in  to  manage  the  business,  and  to 
take  charge  of  my  interest  as  well  as  the  bal 
ance. 

RE  CROSS  EXAMINATION. 

The  two    suits  which    I    brought   against  the 


82 

238  History  Company  were  not  prosecuted  because 
my  counsel  advised  me  they  were  brought  against 
the  wrong  party.  I  understand  my  claim  is 
against  defendant.  I  do  not  make  or  assert  any 
claim  against  the  History  Company  under  this 
contract  at  the  present  time,  except  if  it  comes 
in  afterwards  ;  I  don't  know  what  the  legal  status 
would  be.  I  do  not  now  intend  to  prosecute  those 
two  suits  against  the  History  Company  unless 
my  counsel  advise  me  to  do  so.  I  do  not  expect 
to  collect  against  two  parties  for  the  same  ser 
vices.  I  am  now  suing  defendant. 

Q.  Do  you  now  make  and  assert  any  claim 
against  the  History  Company  under  this  con 
tract  ? 

A.  I  understand  my  claim  is  against  defen 
dant. 

Q.  Then  you  have  no  claim  against  the  His 
tory  Company  ? 

2  AO  A.  I  have  no  claim  against  the  History  Com 
pany.  If  the  History  Company  serve  notice  that 
they  expect  my  services  again,  I  will  go  to  work 
to-morrow  morning.  I  will  go  to  work  on  the 
demand  of  defendant  and  the  History  Company. 
I  am  ready  to  perform  my  duties  to  the  History 
Company  at  any  time,  in  the  capacity  that  I  was 
to  perform  my  contract. 

Q.     All  the  services  you  have  rendered  under 


241  this  contract  you  have  rendered  for  the  History 
Company,  have  you  not  ? 

THE  COURT  :  The  witness  stated  that  up  to  the 
time  of  the  formation  of  the  corporation  he 
worked  under  that  contract,  and  then  continued 
to  work  under  the  contract  for  the  corporation  up 
to  the  time  of  his  dismissal  in  the  performance  of 
his  contract  to  December,  1892. 


242  D.  R.  SESSIONS 

was  called  on  behalf  of  plaintiff,  and  after  being 
duly  sworn  testified  as  follows  : 

I  reside  in  San  Francisco.  I  am  at  work  for 
-  ihe  Southern  Pacific  Railroad  Company.  I  have 
known  plaintiff  seven  years.  I  know  where  his 
apartments  were  in  the  History  Company's  build 
ing.  I  was  at  work  with  him  most  of  the  time. 
I  went  into  the  employment  of  the  History  Com- 

243  pany  in   February,  1885,  and   into   the    employ 
ment  of  the  History  Company,  a  corporation,  as 
soon  as  it  was  formed.     It    was    formed  shortly 
after  the  fire;  I  believe  in  September,  1886.     My 
work  at  that  time  was  mostly  attending  to  the 
correspondence  of  the  company.     I  worked  with 
Mr.  Stone,  so  that  I  could  observe  what  hours  of 
labor  he  passed,  and  the  manner  in  which  he  dis 
charge'!   his  duties.     I  was  working   there   very 


84 

244  dose  to  plaintiff"  all  the  time.  My  recollection 
is  that  his  hours  were  about  seven  to  six  ;  begin 
ning  at  seven  in  the  morning.  I  have  always 
taken  plaintiff  to  be  a  man  of  nervous  tempera 
ment,  one  who  works  with  enthusiasm  and  fervor; 
in  fact,  it  was  the  constant  fear  of  those  inter 
ested  in  the  business  that  he  would  break  down, 
and  I  remember  telling  defendant  that  plaintiff 
should  go  away  to  relieve  his  mind  of  the  busi 
ness  for  a  time,  and  defendant's  reply  was  to  the 
"^  effect  that  a  man  of  his  temperament  could  not 
be  stopped,  that  they  had  to  do  their  work  in 
their  own  way;  this  was  after  I  had  been  with 
the  company  a  year  or  two.  It  was  after  the  fire 
when  we  were  having  a  good  deal  of  difficulty  in 
reconstructing  the  business.  I  ceased  working 
for  plaintiff  in  the  Spring  of  1892;  I  cannot  fix 
the  date  definitely,  because  I  had  some  unfinished 
accounts  and  business  with  the  company,  and  I 

2  ,£  did  not  stop  going  there  at  a  fixed  date.  I  think 
I  assumed  my  present  employment  in  June  of 
1892.  I  think  it  was  about  that  time  that  I 
ceased  working  with  plaintiff.  I  think  it  was 
about  that  time  that  lie  was  deposed  as  Vice- 
President  and  Morrison  elected;  it  seemed  to  me 
a  very  good  time  to  go  out.  I  left  about  that 
time.  When  I  spoke  about  plaintiff's  manner  of 
performing  duties,  I  mean  during  the  entire 


«s 

period   that    I  was  there ;  that   holds  true  as  a 
general  proposition. 

CROSS-EXAMINATION. 

I  assumed  another  employment  in  June,  1892, 
but  my  connection  with  the  History  Company 
was  not  severed  at  once ;  I  was  there  very  little 
after  that  time  and  had  very  little  opportunity  to 
observe  plaintiff  after  that  time. 

Defendant  moved  to  strike  out  the  testimony 
4  of  this  witness,  on  the  ground  that  plaintiff  was 
paid  up  to  June,  1892,  and  that  his  conduct 
before  that  time  had  nothing  to  do  with  his 
recovery  for  services  after  that  time,  and  that  the 
testimony  was  not  responsive  to  any  issue  raised 
by  the  pleadings. 

This  motion  was  denied  by  the  Court,  to  which 
ruling  defendant  excepted. 
Exception   No    21. 

24.Q  

T7 

H.    B.  HAMBLT 

was  called  as  a  witness^  *t>n  behalf  of  plaintiff,  and 
after  being  duly  sworn  testified  as  follows: 

I  reside  in  Sari  Francisco  and  have  resided 
there  about  ten  fears.  During  that  time  was 
employed  first  by'  A.  L.  Bancroft  &  Company  and 
afterwards  by  the  History  Company.  Went  into 


86 

250  the  employment  of  the  History  Company  when 
it  was  incorporated   in  September,  1886,  and  re 
mained    until  February,  1892.     Know  the  plain 
tiff.     Remember  that   he  was  employed    by  the 
History  Company.     Was  near  him  and  saw  him 
every    business   day.     Sometimes   he  would    be 
there  when  I  reached  the  office  in  the  momma:; 

O  ' 

sometimes  he  came  after  I  got  there.  Was  quite 
familiar  with  the  duties  he  performed.  He  per 
formed  his  duties  very  industriously  and  assidu- 

251  ously. 

Question  by  plaintiff's  counsel :  "Do  you  re 
member  about  how  many  hours  a  day  he  attended 
in  his  office  ? 

This  question  was  objected  to  by  defendant 
on  the  ground  that  it  was  irrelevant  and  imma 
terial  and  incompetent. 

The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  excepted. 

252  Exception  No.  22. 

A.  He  was  there  on  an  average  of  six  or 
seven  hours  every  day.  This  was  up  to  Febru 
ary  6th,  1892.  I  was  not  so  familiar  with  his 
work  after  that.  I  had  been  engaged  in  this 
same  business  from  July,  1884,  up  to  the  forma 
tion  of  the  History  Company  in  the  department 
of  Bancroft's  Works,  with  plaintiff.  There  was 
no  change  nor  slacking  up  in  the  energy  or  dili- 


87 

253  gence  displayed  by  plaintiff  in  the  discharge  of 
his  duties  that  I  know  of.  Once  in  a  while  he 
would  overwork  and  be  a  little  sick,  and  would 
probably  come  a  little  later  in  the  morning,  but 
nothing  to  speak  of.  Sometimes  he  would  work 
so  hard  he  would  become  prostrated.  I  married 
the  plaintiff's  niece. 


DANIEL  CRAWFORD 

**     was  called  as  a  witness  on  behalf  of  plaintiff,  and 
after  being  duly  sworn  testified  as  follows: 

I  am  sixte'en  years  old  and  reside  in  San  Fran 
cisco.  Have  never  been  upon  the  witness  stand 
before.  I  worked  for  the  History  Company,  be 
ginning  in  February,  1892,  and  ending  in  Janu 
ary,  1893,  up  to  February,  a  full  year.  Know 
plaintiff  and  defendant.  Saw  plaintiff  at  the  office 
of  the  History  Company  every  day  during  that 
time,  from  8  o'clock  to  5.  Saw  him  there  during 
the  months  of  July,  August,  September,  October, 
November,  December  and  January  every  day. 
Received  orders  from  defendant  to  take  the  cast 
ers  off  the  desk  of  plaintiff.  I  did  take  two  of 
them  off ;  I  couldn't  take  the  back  casters  off,  be 
cause  the  drawers  would  fall  out,  and  the  desk 
was  too  heavy,  and  I  could  not  get  at  the  others. 
They  were  fixed  in  deeper  than  the  others;  they 


88 

256  were  screwed  in  and  the  others  were  staved  in.   I 
did  not  make  any  report  to  defendant. 

CROSS-EXAMINATION. 

My  duties  at  the  History  Company  were  to 
copy  letters,  and  call  for  and  deliver  packages. 
I  suppose  defendant  was  there  three  or  four 
different  months  at  different  times.  I  have 
seen  him.  I  was  there  every  day  from  Febru 
ary,  1892,  to  the  end  of  January,  1893,  be- 

357  ." 

ginning  my  services  on  the  1st  of  February,  1892, 

and  working  until  the  end  of  January,  1893.  I 
think  I  saw  plaintiff  there  every  day  during  that 
time.  I  remember  the  fact  that  he  was  there 
every  day  from  eight  until  five,  because  I  dusted 
and  did  everything  like  that  when  I  got  in  the 
office.  He  came  in  a  little  while  after  I  did.  I 
got  there  at  half-past  seven,  and  sometimes  at 
seven.  He  arrived  generally  from  eight  to  half- 

358  past  eight.      He    remained  sometimes  until  five 
o'clock,  and  sometimes  he  left  at  four  o'clock.     I 
cannot  say  that  there  was   any  time  during  that 
time  that  he  was   not  there  as  early  as  half-past 
eight,  and  that  he  did    not  remain   up    to    four 
o'clock,  because   I  left  at    six  o'clock,  and    don't 
remember   of  seeing    him    any  later   than    eight 
o'clock.     I  got  there  about  half-past  seven  in  the 
morning,  and  remained  until  six    in  the  evening. 


259  Plaintiff  was  there  every  day  up  to   that  time. 
He  always  got  there  as  early  as  half-past  eight, 
and  remained  as  late  as  four  o'clock.     Sometimes 
he  might  have  come  in  at  nine  o'clock,  but  never 
later  than  nine.     He  might  have  gone  away  at 
three  o'clock,  but  very  seldom.     He  never  went 
away  earlier  than  three  o'clock,  to  my  knowledge. 
During  the    entire   time  that  I  was   there,  there 
was  no  time  that  plaintiff  was  not  at  the  History 
Company  at  least  from  nine  o'clock  in  the  morn 
ing  until  three  o'clock  in  the  afternoon.     I  don't 
remember  his  going  away  any  earlier.     I  am  pre 
pared  to  say  that  he  was  there  not  later  than  nine 
o'clock  and  remained   until  at   least  three  o'clock 
^every  day  during  the  entire  year  I  was  there;  he 
may  have  been  away  if  he  was  sick,  but  that  hap 
pened  very  seldom.     During  the  time  I  was  em 
ployed  by  the   History  Company,  I    went  out  to 
see  plaintiff  and  told  him  I  was  told  to  take  the 
casters  off  his  desk.     Of  course,  I  didn't  like  to  do 
it  until  I  told  him.     Defendant  told  me  to  take 
off  the  casters.     I  don't  know  what  time  it  was; 
it  was  in  the    night,  the   time  for  us  to  go  home, 
about  half-past  five.     It  was   during  the   latter 
part  of  my  service  there.     I  think  it  was  a  month 
or   two  before   January,    1893;  I    think    in   the 
month  of  November,  1892.     I    think   it  was  in 
November,  1892,  because  there  was  another  boy 


90 

262  went  to  work  there,  and  this  boy  went  to  work,  I 
believe,  in  June,  I  think  it  was  June  or  July  that 
he  went  to  work  there ;  he  helped  me  take 
the  casters  off.  I  couldn't  lift  the  desk  myself, 
and  he  helped  me  to  take  them  off.  I  think  it 
was  two  or  three  months  after  he  came  to  work, 
because  he  didn't  know  defendant;  he  hadn't  seen 
him  before  that  time,  a  couple  of  days  before 
that.  I  could  not  say  whether  it  was  two  or  three 
months  after  he  came  there  that  he  helped  me  to 
3  take  the  casters  off;  I  know  it  was  two  or  three 
or  four  months  ;  I  know  it  was  some  months  after. 
I  am  just  as  positive  about  my  statement  that 
plaintiff  was  there  at  the  History  Company's 
office  every  day  from  the  1st  of  February,  1892, 
until  the  31st  of  January,  1893,  from  nine  o'clock 
in  the  morning  to  as  late  as  three  o'clock  in  the 
afternoon,  except  the  times  he  was  sick,  as  I  am 
that  defendant  gave  me  this  direction.  I  am  just 

264  as  Positive  of  the  one  statement  as  I  am  of  the 
other.  I  am  satisfied  that  I  am  not  mistaken 
about  either  statement.  Mr.  Stone  was  at  the 
office  of  the  History  Company  on  the  31st  day  of 
January,  the  day  I  quit.  His  desk  was  moved. 
He  was  working  there  doing  different  things 
around.  On  the  30th  day  of  January  he  was  do 
ing  the  same  thing.  Every  day  I  saw  him  there, 
he  was  busy  from  nine  o'clock  in  the  morning  until 


265  three  o'clock  in  the  afternoon.  Different  days  I 
have  been  out  he  might  have  been  there  ;  I  no 
ticed  him  being  there  when  I  came  back.  I  am 
pretty  sure  that  he  was  always  at  work  from  nine 
o'clock  in  the  morning  to  at  least  three  o'clock  in 
the  afternoon,  during  the  entire  month  of  Janu 
ary,  1893,  and  during  the  entire  month  of  Decem 
ber,  1892.  He  was  at  work  at  his  desk  ;  but  at 
one  time  he  couldn't  work  at  his  desk,  but  he 
came  there  still.  1  did  not  take  much  notice  of 
whether  there  was  any  difference  in  his  attendance 
during  the  months  of  December,  1892,  and  Janu 
ary,  1893,  as  during  the  early  part  of  my  service 
there,  I  didn't  take  much  notice  of  it,  only  the 
desk  was  moved  and  then  his  desk  was  moved 
back  again.  I  am  pretty  sure  his  attendance  was 
just  as  regular  during  the  months  of  December, 
1892,  and  January,  1893,  as  it  was  in  February 
and  March,  1892.  It  was  around  January  that 

267  he  could  not  work  at  his  desk,  but  he  was  still 
there.  The  desk  was  moved  at  different  places, 
around  from  one  to  another.  I  would  leave  it 
there  in  the  night,  and  come  in  the  morning  and 
it  would  be  moved.  That  occurred  four  or  five 
times  I  think.  One  evening  I  went  away  and  the 
next  morning  when  I  came  I  found  the  top  kind 
of  taken  out,  the  screws  kind  of  taken  out,  a 
couple  of  screws  on  the  top,  and  the  desk  lid  had 


92 

268  been  opened.  The  chair  was  taken  away  and  the 
letter-basket.  The  desk  was  standing  near  the 
washroom  where  the  gas-fixtures  come  up  from 
the  floor ;  it  was  standing  there,  and  was  moved 
beyond  the  other  desk.  The  other  desk  was 
twenty  feet  long  ;  it  was  moved  about  forty  feet 
to  the  side  of  the  other  desk.  I  am  pretty  sure 
plaintiff  was  there  every  day  ;  that  is  my  impres 
sion  ;  I  am  sure. 

269 

NYNA  HAMBLY 

was  called  as  a  witness  on  hehalf  of  plaintiff,  and 
after  being  duly  sworn  testified  as  follows : 

I  reside  in  San  Francisco  and  am  the  wife  of 
Mr.  Hambly,  who  has  been  called  as  a  witness  in 
this  case.  I  am  the  niece  of  plaintiff.  Prior  to 
my  marriage,  I  was  employed  by  the  History 
Company.  I  entered  its  service  on  the  18th  day 
of  February,  1890,  I  think,  and  remained  until 
the  last  day  of  July,  1892.  I  was  stenographer 
and  typewriter,  and  was  under  the  directions  of 
plaintiff.  I  was  acting  as  stenographer  and  type 
writer  all  of  that  time,  except  towards  the  last; 
then  I  had  other  work  to  do,  but  I  was  still  under 
plaintiff;  I  still  took  his  letters  and  did  other 
work  for  him,  but  other  work  was  assigned  me. 
During  the  time  I  was  there  I  saw  plaintiff  fre- 


93 

271  quently  ;  he  was  always  there.  Ofttimes  he  was 
there  when  he  was  sick  and  should  not  have  been 
.  there,  but  he  always  came  down  except  when  he 
was  not  able  to  come  at  all.  If  he  was  at  the 
ranch  he  did  not  come  there  until  nine,  but  he 
was  usually  there  at  eight  and  before  eight,  and 
often  until  as  late  as  six  ;  we  left  at  half-past  five, 
and  he  was  often  there  when  we  left.  Some 
times  we  had  to  stay  later,  and  he  was  there  until 
,six.  Usually,  though,  he  left  when  we  did,  at 
'  five  o'clock,  between  five  and  half-past.  In  May, 
1892,  I  heard  a  conversation  between  plaintiff 
and  defendant.  I  was  very  close  to  them,  but  I 
was  running  the  typewriter,  so  I  only  heard  it 
disconnectedly,  but  I  heard  defendant  say  to 
plaintiff  he  would  beggar  him  and  his  wife  and 
children.  I  heard  him  say,  "  I  will  beggar 
you  and  your  wife  and  your  children."  Then  I 
did  not  hear  any  more  because  I  did  not  listen  ; 

27-2  in  fact,  I  did  not  listen  to  him  until  he  came 
right  up  behind  me,  and  Mr.  Stone  was  on  the 
other  side  of  the  desk.  I  could  not  see  defen 
dant  ;  he  was  right  back  of  me. 

CROSS-EXAMINATION. 

I  certainly  do  feel  an  interest  in  this  case.  I  was 
operating  on  the  typewriter  at  the  time  I  heard 
this  conversation.  Defendant  stood  right  behind 


94 

274  me>  and  plaintiff  stood  on  the  other  side  of  the 
counter  ;  the  counter,  I  should  say,  was  about 
two  feet  wide,  and  defendant  stood  right  behind 
my  chair ;  he  was  very  near  the  counter.  His 
back  must  have  been  towards  me,  and  he  was 
talking  to  plaintiff  who  was  on  the  other  side  of 
the  counter  from  me  ;  I  should  think  plaintiff  was 
four  feet  away  from  me,  and  defendant  about  two 
or  three  feet.  During  all  this  time  I  was  operat 
ing  the  typewriter,  but  did  not  know  what  I  was 

27  ^ 

writing  from.     1    may    have    been   writing   from 

notes,  but  I  was  listening.  I  do  not  know 
whether  I  was  writing  some  original  matter  ;  I 
may  have  been  simply  making  the  typewriter  go, 
but  I  don't  remember  the  fact.  I  cannot  tell  the 
first  of  the  conversation.  They  were  in  the  pri 
vate  office,  and  of  course  we  could  not  hear  any 
thing  that  was  going  on  there.  When  they 
came  out,  I  glanced  around  at  them.  Then  Mr. 
Bancroft  walked  upstairs  with  Mr.  Dorland,  and 
then  came  back.  Mr.  Stone  was  there  behind 
me,  and  he  walked  up  to  the  counter  there  and 
spoke  to  Mr.  Stone  ;  but  then  I  did  not  want  to 
turn  right  around  and  look  at  them.  He  said  he 
would  beggar  Stone  and  his  wife  and  children. 
That  is  the  substance  of  it  ;  there  were  other 
things  said,  but  I  could  not  hear  the  words. 
Durino-  the  time  he  was  uttering  these  words  I 

O  '•--' 


95 

was  operating  the  typewriter.     I  think  my  hear 
ing    was    acute    enough,    when    I    was    sitting 
by   the   typewriter   and   operating   it,  to  hear  a 
statement   made   two   feet  away,  because   I   was 
listening  to  it,  and  his  tone  of  voice  was  a  great 
deal   louder  than  he  usually  speaks.     He  never 
raises  his  voice  except  when  he  is  angry,  and  he 
was  angry  at  that  time.     I    do   not   know  how 
loud  the  tone  was,  but  I  heard  it.    I  do  not  know 
whether  he  uttered  those  words  in  the  same  tone 
'      of  voice  as  the  balance  of  the  conversation.  Those 
are  the  only  words  I  heard.     I  think  there  was 
some  preliminary  conversation  in  the  office  ;  there 
was  some  loud  talking,  but  we  could  not  hear  it. 
I  could  not  say  whether  there  was  anything  else 
said  in  the  outer  office  ;  they  were  right  close  to 
me  when  that  was  said.     The  substance  of  what 
defendant  said  was  that  he  would  make  beggars 
of  Stone,  his  wife  and  children.     I   do  not  know 
what  else   he   said.     I   do  not  know  whether  he 
said   he   would   make  beggars  of  Stone,  his  wife 
and  children,  if  Stone  sued  him.     I  did  not  hear 
him   say   that  he  would  make  beggars  of  Stone,, 
his  wife  and  children  if  Stone  sued  him.     I  was 
examined  as  a  witness  in  the  case  of  Morrison  vs. 
Stone,   which  was  tried  in  the  City  and  County  of 
San  Francisco.     I  was  asked  at  that  time  to  tell 
what  portion  of  this  conversation  I  heard. 


96 

280  Q.  Did  you  not  give  this  answer  :  ;'  I  was 
writing  on  the  typewriter  at  the  time,  so  I  did 
not  hear  ;  I  was  quite  close  to  them,  but  on  ac 
count  of  the  noise  of  the  typewriter,  I  only  heard 
what  Mr.  Bancroft  said  to  Mr.  Stone  as  Mr.  Stone 
was  coming  out,  and  that  was  to  the  effect  he 
would  beggar  him,  make  his  wife  and  children 
beggars  if  he  sued  him."  Did  you  make  that 
answer  at  that  time  ? 

A.  I  could  not  say  ;  I  do  not  know  whether 
I  did  or  not.  I  presume  I  did  if  it  is  on  the 
record. 

Witness  continuing  :  I  do  not  remember  now 
whether  I  heard  anything  said  by  defendant  about 
suing  him. 

Q.  Why  did  you  not,  at  that  time,  when  that 
question  was  asked  you,  say  you  were  listening, 
and  that  you  were  simply  operating  the  type 
writer  as  a  subterfuge  ? 

2g2  A.  I  was  not  asked.  I  said  at  that  time,  that 
I  was  close  to  them,  but,  on  account  of  the  noise 
of  the  typewriter,  I  only  heard  what  defendant 
said.  I  have  not  said  that  the  noise  of  the  type 
writer  did  not  interfere  with  my  hearing.  It  did 
interfere,  so  that  I  only  heard  the  words  I  have 
told  you  I  heard.  I  don't  know  whether  Stone 
was  standing  still  or  walking  when  the  statement 
was  made  to  him.  He  had  his  overcoat  on  and 


283  was  standing  close  to  the  door,  and  defendant  was 
going  downstairs,  and  came  back  and  said  that. 
I  don't  know  whether  defendant  made  that  threat 
at  that  time  and  said  he  would  carry  it  into  effect 
if  Stone  sued  him.  It  is  a  good  while  ago.  I 
don't  remember  whether  Bancroft  said  he  would 
beggar  Stone  and  his  wife  and  children  if  he  sued 
him.  I  may  have  remembered  more  at  the  time 
I  was  a  witness  a  year  ago  than  I  do  now.  I 

have  not  been  thinking  about  it  a  whole  year. 

»  »  •/ 

284 

ELEANOR  HAYES 

was  called  as  a  witness  on  behalf  of  plaintiff,  and 
after  being  duly  sworn  testified  as-  follows  : 

I  live  in  San  Francisco.     I  am  a  stenographer 
and  typewriter.     I   entered  the   employment  of 
the    History    Company    in    1888.     I    was  there 
about  four    years    and  a    half,  up  to    November 
2gr   30th,  1892.      Know  the  plaintiff.     As  well  as  I 
can  remember  he  was  in  attendance  there  every 
day  during  that  time,  with  the  exception  of  sick 
ness  or  something  of  that  kind.       I  cannot  recall 
when  he  was  not  present.     I  was  employed  there 
as  stenographer  and  typewriter.     Am  acquainted 
with  defendant.     Saw  defendant  at  Stone's  desk. 
Saw  him  several  times  kick  Stone's  waste  basket 
and  send   it   flying'  along  the   aisle,  and  kick   his 


98 

286  office  chair,  and  I  saw  him  tumble  the  things 
over  on  Mr.  Stone's  desk  and  upset  the  ink  bot 
tle.  Stone  was  not  present  at  the  time.  Defen 
dant  put  a  saw  horse  on  Stone's  desk.  A  few 
moments  before,  I  laid  a  bill  on  Mr.  Stone's  desk, 
and  after  Mr.  Valentine  got  through  with  the 
desk,  I  went  up  to  get  a  letter  and  found  the  ink 
dropped  all  over  the  papers  and  bill  heads,  and  the 
little  receptacle  that  Mr.  Stone  had  his  pens  and 
rubbers  in  strewn  over  the  desk.  When  defen- 
dant  engaged  in  kicking  the  waste  basket  and 
kicking  the  chair  his  manner  indicated  anger  •. 
he  acted  spitefully,  I  thought.  I  heard  the 
threat  made  by  defendant  to  plaintiff.  Defendant 
said,  "Stone,  if  you  sue  me,  I  will  beggar  your 
wife  and  your  children,"  and  he  used  profanity. 
The  profanity  was  muffled,  but  the  rest  of  it  I 
should  judge  he  was  speaking  through  his  teeth 
in  anger,  in  a  spiteful,  threatful  tone.  I  saw 

288  when  I  came  in  the  office  in  the  morning  to  my 
desk  that  Mr.  Stone's  desk  was  removed  several 
times  to  the  end  of  the  office,  or  to  different  por 
tions  of  the  office.  I  should  say  the  farthest  dis 
tance  that  it  was  removed  from  the  place  where 
Mr.  Stone  used  to  keep  it  was  about  twice  the 
length  of  this  court-room,  perhaps  three  times. 
It  was  removed  to  the  extreme  end  of  the  Historv 
Company's  office.  I  know  that  the  casters  were- 


99 

289  removed  from  his  desk.     I  saw  Crawford  taking 
the  casters  off  one    evening   and  saw  the   desk 
turned  upside  down  and  both  boys  attempting  to 
remove  the  casters  when  I  left  the  office.       The 
kicking  by    defendant  which    I  have  spoken   of 
took  place  between  the  months  of  August  and 
November,  1892.     I  left  there  in  November,  and 
it  took  place  just  before  that.    The  threats  which 
I  have  described  I  heard  in  the  early  part  of  the 
>  year.     I  suppose  it  was  July  ;  it  was  just  before 
°     this  trouble  came.     It  was  the  first  trouble,  or  at 
least  the  first  I  knew  anything  of  or  heard  of. 
When  Morrison  took  hold  of  Stone,  he  was  in  the 
private  office,  and  I  saw  Morrison  push  him  out. 
I  cannot  tell  the  time,  but  it  was  one   of  those 
three  months.     I  do  not  know  whether  Bancroft 
was  there ;  he    might  have    been  in  the  private 
office,  but  I  did  not  see  him  ;  I  simply  saw  Mor 
rison  and  Stone.     I  am  not  now  in  the  employ - 

2  ment  of  the  History  Company.  I  am  employed 
by  Judge  Thompson  as  stenographer  and  type 
writer  . 

Mr.  Morrison  said  to  me  that  Stone  was  not 
working  for  the  History  Company.  He  said  he 
had  no  authority  there,  that  he  was  simply  there 
as  a  spy.  He  did  not  say  anything  further  that 
I  can  recall. 

CROSS-EXAMINATION. 

My  deposition    was  taken   in    this  case  some 


100 

292  time  ago  at  my  residence  in  San  Francisco.  The 
substance  of  what  Bancroft  said  to  Stone  was, 
"Stone,  if  you  sue  me,  I  will  beggar  your  wife 
and  children."  That  was  all  I  could  distinctly 
understand.  Stone  said,  "  You  do  your  best,"  I 
believe.  I  saw  the  boys  in  the  act  of  taking  the 
casters  off  the  desk.  The  desk  was  turned  up 
side  down  and  the  gas  was  lighted,  and  they 
were  taking  them  off.  I  don't  know  whether 
they  got  them  off.  The  desk  was  turned.  It  is 

2Q2 

0  likely  the  desk  was  upside  down,  it  might  have 
been  on  its  side,  I  cannot  recall.  It  was  either 
on  its  side,  or  it  was  turned  with  the  casters  to 
the  ceiling.  I  do  not  think  they  could  remove 
the  casters  any  other  way.  I  was  here  when 
Crawford  testified  about  removing  the  casters. 
When  I  saw  him,  the  boy  was  helping  him  tip  it 
over.  When  I  saw  him  it  was  being  tipped.  It 
was  either  on  its  side,  or  the  casters  towards  the 
204  ceiling.  As  well  as  I  can  recall,  the  desk  was  on 
its  side ;  it  may  be  that  it  was  turned  upside 
down  ;  I  don't  recall.  I  have  an  interest  in  this 
case.  If  I  can  help  the  plaintiff  in  any  way,  I  am 
willinor  to  do  so. 


F.  C.  STAIB, 

called  as  a  witness  on  behalf  of  plaintiff,  and  after 
being  duly  sworn  testified  as  follows: 


101 

295  I  am  a  bookkeeper.  I  am  now  employed  by 
the  Will  &  Finck  Company  in  San  Francisco. 
Was  employed  by  the  History  Company  from 
July,  1886,  to  February,  1891,  and  also  from  the 
17th  of  March  to  the  16th  of  June,  1892.  Know 
both  the  parties  to  this  action.  When  I  was  at 
the  office  of  the  History  Company  the  plaintiff 
was  in  attendance  there  every  day.  He  was 
there  every  day  and  hour.  My  attendance  was 
regular  except  when  I  went  there  the  second 
time.  I  made  an  arrangement  with  Stone  and 
Morrison  that  I  was  to  get  off  every  Thursday 
afternoon  for  a  half  day,  but  I  think  I  was  only 
off  three  or  four  of  those  Thursdays.  All  the 
balance  of  the  time  I  was  there.  I  always  saw 
plaintiff  there  when  I  was  there.  Heard  a  con 
versation  between  plaintiff  and  defendant  one  day 
of  an  unusual  character.  They  were  in  the  in 
side  office.  I  do  not  know  what  was  going  on 

207  there.  The  door  opened,  and  plaintiff  and  defen 
dant  came  out,  and  defendant  said,  "  Stone,  you 
would  not  do  that  to  me  after  all  I  have  done  for 
you;"  and  then  Stone  replied  that  he  would  see 
his  attorney.  I  suppose  they  were  talking  about 
some  law  suit,  and  defendant  said,  "  If  you  do,  I 
will  make  beggars  of  you  all."  I  don't  know  as 
those  are  the  exact  words,  but  that  is  the  sub 
stance  of  it.  That  is  as  I  remember  it.  This 
was  about  the  middle  of  May,  1892. 


IO2 
298  CROSS-EXAMINATION. 

What  first  drew  my  attention  was  Bancroft's 
statement,  "  Stone,  you  would  not  do  anything 
like  that  after  all  I  have  done  for  you ; "  some 
thing  like  that.  And  then  Stone,  I  think,  re 
plied,  he  would  see  his  attorney,  or  something  to 
that  effect,  and  Bancroft  replied,  "If  you  do  I 
will  make  beggars  of  all  of  you."  That  is  about 
all  I  can  remember  that  was  then  said.  I  was 
about  forty  or  fifty  feet  from  Stone  and  Bancroft 
when  the  conversation  took  place.  Mrs  Hambly 
was  twenty  feet  from  me  and  Miss  Hayes  was 
twelve  feet  from  Mrs.  Hambly.  I  was  back  of 
the  counter  and  Mrs.  Hambly  was  outside  of  the 
counter,  and  Stone  and  Bancroft  were  outside  the 
counter,  arid  Miss  Hayes  was  outside  the  coun 
ter.  Mrs.  Hambly  was  at  least  twelve  feet  from 
Stone  and  Bancroft,  and  Miss  Hayes  was  at  least 
twelve  feet  further,  making  twenty-four  feet  from 
them.  I  am  not  positive  whether  both  Stone  and 
Bancroft  were  outside  the  counter.  They  were 
coming  through  the  door  when  he  used  this  lan 
guage,  and  the  door  was  outside  the  counter. 
My  best  recollection  is  that  all  of  the  parties 
were  outside  the  counter  when  the  conversation 
took  place.  As  near  as  I  can  recollect,  I  think 
Mrs.  Hambly  and  Miss  Hayes  were  present.  I 
think  there  were  other  parties  there  too.  Mrs. 


103 

joi  Hanibly  was  about  twelve  feet  from  Mr.  Ban 
croft.  Bancroft's  tone  of  voice  was  loud  enough 
so  I  could  hear  him.  It  was  above  his  ordinary 
tone  of  voice — conversational  tone. 


W.  H.  HARTWELL 

was  called  as  a  witness  on  behalf  of  plaintiff,  and 
after  being  duly  sworn,  testified  as  follows  : 

I  reside  in  San  Francisco.  I  was  with  the  old 
firm  of  A.  L.  Bancroft  &  Company  up  to  the 
time  of  the  fire  in  April,  1886,  and  was  employed 
by  the  History  Company  from  that  time  until 
May  16,  1892.  I  know  both  the  parties  to  this 
action.  During  the  time  I  was  with  the  History 
Company  I  was  Secretary  and  Treasurer  a  por 
tion  of  the  time,  and  Treasurer  and  Assistant 
Secretary  the  remainder  of  the  time.  During  the 
time  I  was  there,  I  knew  whether  Stone  was  in 
-5Q-2  attendance  on  the  business  of  the  company.  His 
attendance  was  very  regular,  except  at  times 
when  he  was  sick  or  had  leave  of  absence.  I 
should  say  he  was  very  diligent.  I  had  an  op 
portunity  of  observing  the  manner  in  which  he 
performed  his  duties  and  all  that,  and  I  should 
say  he  was  a  man  of  very  prompt  and  diligent 
habits,  always  on  time  in  the  morning,  and  ex 
hibited  diligence  in  his  work  until  it  was  time  for 


104 

304  him  to  go   home.       He  attended  strictly  to  his 
business  while  he  was  there  arid  o-ot  through  a 

O  O 

great  deal  of  work,  and  could  keep  a  good  run  of 
the  business,  too.  I  think  I  was  Secretary  and 
Treasurer  until  May,  1890,  and  then  Mr.  Morri 
son  was  admitted  in  the  business  and  I  resigned 

o 

as  Secretary,  and  he  was  appointed  to  fill  the 
place  ;  then  they  created  the  position  of  Assistant 
Secretary,  which  I  filled  in  conjunction  with  the 
office  of  Treasurer.  While  I  was  Secretary  and 
3  5  Treasurer,  I  was  supposed  to  be  under  the  orders 
of  the  Board  of  Directors.  As  they  were  not 
there  a  great  deal  of  the  time,  or  as  they  could 
not  be  in  session  all  the  time,  and  Mr.  Stone  was 
Manager,  I  received  orders  from  him.  Occa 
sionally  Mr.  Bancroft  gave  me  orders.  The  reso 
lutions  were  passed  in  open  meeting  of  the  Board 
of  Directors.  Defendant  brought  out  resolutions 
at  different  times  which  he  wanted  passed,  and 
the  matter  was  brought  up  in  open  meeting  and 
passed.  I  think  they  were  always  passed  with 
out  exception.  Sometimes  there  was  discussion 
before  their  passage  and  sometimes  there  was 
not.  I  should  say  the  business  was  run  in  gen 
eral  as  defendant  wished  it  run.  I  remember 
that  defendant  brought  up  some  resolutions  with 
reference  to  the  duties  of  officers  and  with  refer 
ence  to  whose  names  should  appear  on  the  papers 
and  that  sort  of  thing. 


105 

307       (Witness  refers  to    the  Minute   Book    of  the 
History  Company.) 

The  resolutions  I  referred  to  are  numbered  33. 
The  date  of  the  meeting  was  June  5,  1889,  but  it 
was  some  time  before  that  I  saw  the  resolutions 
in  the  handwriting  of  defendant.  I  forget 
whether  they  were  mailed  to  me  or  whether  they 
were  handed  to  me  personally,  but  my  impression 
is  they  were  mailed  to  me  by  defendant.  The 
original  of  the  resolutions  was  written  by  defen- 

Q    \  O  i/ 

dant.  I  don't  know  that  I  could  point  out  any 
other  resolution  which  came  to  me  in  his  hand 
writing,  or  which  I  knew  were  directed  by  him. 
Mr.  Stone  had  the  combination  to  the  safe  all  the 
time  I  was  there.  I  know  it  was  changed  after- 

O 

wards,  because  Mr.  Dorland  came  down  to  the 
Tallant  Banking  Company,  where  I  was  employed 
dt  that  time,  and  asked  me  to  change  the  combi 
nation.  He  asked  me  about  how  the  combination 
309  was  to  be  changed.  It  was  a  combination  in 
which  the  lock  was  not  opened,  but  a  key  was  in 
serted  and  turned  to  a  certain  point,  and  then  the 
combination  changed  from  that  point.  I  told  him 
of  certain  papers  in  the  safe  which  directed  a  per 
son  how  to  change  the  combination.  I  also  told 
him  I  would  go  to  the  office  and  show  him  if  he 
wanted,  and  he  told  me  he  would  like  to  have  me 
do  so.  So  I  went  to  the  office  and  we  set  the 


io6 

310  combination  to  the  original  direction  and  inserted 
the  key,  and  I  told  him  how  to  change  the  com 
bination  and  left  him  at  that  point.  I  think  that 
was  in  the  latter  part  of  May,  1892.  I  should 
say  Dorland  was  elected  a  Director  of  the  His 
tory  Company  about  a  year  before  that. 

Question  by  plaintiff's  counsel :  State,  if  you 
know,  if  defendant  ever  countermanded  any  of 
Mr.  Stone's  orders  in  the  business. 

This  question  was  objected  to  by  defendant  on 
the  ground  that  it  was  immaterial  and  irrelevant. 

Objection  was  overruled  by  the  Court,  to  which 
ruling  defendant  excepted. 

Exception  No.   23. 

A.  I  know  that  some  time  prior  to  my  sever 
ing  my  connection  with  the  company  Stone 
ordered  me  to  send  some  money  to  Colonel  Hatch 
as  an  agent,  and  Mr.  Bancroft  told  me  I  should 
not  do  it,  and  1  referred  the  matter  to  Mr.  Stone, 
312  and  he  said  he  would  settle  the  matter,  and  I  left 
it  there,  and  the  money  was  sent  afterwards.  I 
do  not  know  that  I  could  state  any  detail  of  any 
other  order  made  by  plaintiff  which  defendant 
countermanded. 

CROSS-EXAMINATION. 

Q.  What  was  your  business  between  May 
and  August,  1886? 


107 

313  A.  The  fire  occurred  on  April  30th,  1886, 
and  I  saw  a  notice  in  the  paper  next  morning 
that  A.  L.  Bancroft  &  Company  would  be  con 
ducted  on  Geary  street. 

Q.  What  were  you  doing  between  May  and 
August,  1886? 

A.  I  was  trying  to  explain  where  I  had  been 
at  that  time.  I  continued  in  their  employ  for 
about  a  month,  and  then  I  went  to  my  home  up 
in  the  mountains,  and  was  gone  three  weeks,  and 

^  came  back  and  entered  their  employ  again.  It 
was  called  the  History  Company  at  that  time.  I 
was  bookkeeper  and  cashier,  and  had  the  hand 
ling  of  moneys,  and  was  in  charge  of  the  pay 
ment  of  salaries.  During  that  time  I  paid  Mr. 
Stone's  salary.  It  was  charged  on  the  books  to 
N.  J.  Stone's  salary  account,  and  was  deducted 
as  an  expense  before  any  dividends  or  profits  were 
declared,  and  all  dividends  and  profits  in  which 

-5jc  Mr.  Stone  participated  subsequent  to  the  incor 
poration  were  paid  after  a  deduction  of  all  the 
expenses.  The  business,  as  it  was  carried  on 
between  May  and  August,  1886,  was  continued 
in  the  same  set  of  books  after  that  time.  There 
was  no  change  in  the  manner  of  carrying  on  the 
business  at  all,  so  that  the  expenses  incurred 
between  May  and  August,  1886,  including  Mr. 
Stone's  salary,  were  deducted  from  the  income  of 


io8 

316  the  corporation  before  any  profits  were  declared 
or  divided.  I  remember  an  order  having  been 
given  by  Mr.  Bancroft  to  suspend  the  payment  of 
a  dividend  at  one  time  when  he  was  absent  from 
the  city.  I  think  he  was  in  San  Diego,  and  he 
wrote  me  a  letter  saying  not  to  pay  any  more 
dividends  until  his  return,  or  something  to  that 
effect,  and  his  order  was  carried  out.  After  that 
the  Board  of  Directors  met,  but  nothing  was 
done  about  it.  There  was  money  on  hand  at 

^  '  that  time,  to  the  best  of  my  knowledge,  sufficient 
to  pay  a  dividend.  Some  time  after  Mr.  Ban 
croft  returned,  a  dividend  was  declared,  but  I 
don't  know  whether  it  was  a  day  or  a  week  or  a 
month  after.  Mr.  Stone  was  a  director  and  had 
one  voice  in  the  meeting.  He  and  Mr.  Bancroft 
were  practically  a  unit  so  far  as  the  resolutions 
were  concerned.  I  remember  one  resolution 
where  Mr.  Stone  made  some  dissent.  That  was 

-  jg  Resolution  No.  32,  providing  for  taking  the  names 
of  officers  off  the  stationery,  but  he  assented  to 
it  finally,  and  voted  for  it,  and  it  was  passed 
unanimously.  I  think  the  resolutions  were  passed 
by  a  unanimous  vote,  or  nearly  so  ;  there  were 
only  two  or  three  dissenting  votes  on  Mr.  Stone's 
part,  and  they  were  at  the  last  meeting  I  attended. 
Mr.  Stone  frequently  offered  resolutions  that 
were  passed  in  regard  to  hiring  an  attorney,  or 


319  appointing  an  agent  for  some  field,  or  for  divi 
dends,  or  something  of  that  kind.  I  think  the 
resolutions  which  he  offered  were  invariably 
passed,  without  exception. 


JOSE  M.  TRIGO 

was  called  as  a  witness  on  behalf  of  plaintiff,  and 
after  being  duly  sworn  testified  as  follows  : 

I  reside  in  San   Francisco,    and    have    resided 
^20 

there  since  1890.     I  was  born  in  Spain,  and  have 

been  in  the  United  States  nine  or  ten  years. 
Know  both  the  parties  to  this  action.  Made  the 
acquaintance  of  plaintiff  in  San  Francisco  on  the 
21st  day  of  May,  1890,  and  met  the  defendant 
the  same  day  at  his  office  in  the  History  Com 
pany.  I  was  brought  by  the  History  Company 
from  New  York.  Mr.  Morrison,  the  Secretary, 
employed  me  in  New  York.  I  remained  with 
221  the  company  from  that  time  up  to  the  15th  of 
January  or  the  15th  of  February,  1893  ;  I  can 
not  remember  now  when  I  sent  the  letter  to  de 
fendant  saying  that  I  should  not  like  to  work  for 
him  any  more.  I  do  not  remember  exactly,  now, 
what  time  that  was  ;  it  was  the  15th  of  February 
or  the  15th  of  January,  1893.  I  have  had  dif 
ferences  with  defendant.  I  now  have  some  liti 
gation  pending  against  him.  One  suit  is  pending 


no 

322  in  the  United  States  Circuit  Court,  and  two  in 
the  Superior  Court  of  San  Francisco.  Those 
suits  relate  to  business  transactions  in  which  I 
claim  money  and  dignity  from  Mr.  Bancroft.  I 
met  Mr.  Bancroft  in  Mexico  about  the  6th  or 
7th  day  of  November,  1891,  and  also  met  Mr. 
Morrison  there  about  the  10th  of  January,  1892. 
He  was  then,  according  to  my  knowledge,  the 
Secretary  of  the  History  Company.  I  saw  Mor 
rison  and  Bancroft  together  very  many  times 
and  many  times  heard  conversations  between 
them  about  getting  rid  of  Stone,  and  putting  him 
out  of  the  business. 

Question  by  plaintiffs  counsel  :  Will  you 
state  the  substance  of  the  conversation,  or  con 
versations  upon  that  particular  subject  ? 

This  question  was  objected  to  by  defendant  on 

the  ground  that  it  was  irrelevant  and  immaterial. 

Objection  overruled  by  the  Court,  and  the  de- 

324  fendant  excepts. 
Exception  No.  24. 

WITNESS.  The  substance  of  all  the  conversa 
tions  were  the  same.  There  were  a  great  many 
of  them;  it  was  to  put  Mr.  Stone  out  of  the 
way— out  of  the  business  of  the  History  Com 
pany.  This,  I  think,  was  about  the  end  of  De 
cember,  1891.  Bancroft  was  then  residing  at  the 
Iturbide  Hotel,  in  the  City  of  Mexico.  He  had 


Ill 

325  had  some  misunderstanding  with  Stone,  of  which 
I  was  not  informed,  but  at  the  dining  table,  and 
everywhere — we    were    together    most    of    the 
time — they  were  talking  of  Mr.  Stone  not  being 
independent  in  his  business,  and  not  obeying  the 
instructions  given,  and  that  was  the  tone  of  the 
conversations  almost  every  day.     Those  were  the 
principal  subjects  up  to  the  10th  of  June,  1892, 
when  Mr.  Morrison  came  to  the  City  of  Mexico. 
Then    Morrison    and    Bancroft   talked    together 
3  about  Stone.     According  to  what  I  heard  them 
say,  the  substance  of  it  was  that   Stone   had  sold 
some  stock  belonging  to  the  History  Company  to 
some  parties,  and   had   virtually    made   the   sale 
~to  himself,  and  that  the  stock  had  been  sold  for  a 
third  or  fourth  of  its  value.     In  many  conversa- 
sations  between   Morrison  and  Bancroft,  I  heard 
the  former  complain  about  the  conduct  of  Stone, 
and  I  heard  Morrison  ask  Bancroft  many  times  if 
he  (Bancroft)  had  anything  to  do  with  the  sale  of 
the  goods  of  the  History  Company,  and  Bancroft 
denied  that  he  had.    I  knew  much  about  the  mat 
ter  of  my  own  knowledge,  and  Bancroft  told  me 
that  he  had  instructed  every  body  and  all  his  em 
ployees  in  San  Francisco  to  close  the  business  and 
reduce  expenses  to  the  last  notch.    They  decided  to 
sue  Stone,  Morrison  to  bring  suit  on  one  side  and 
Bancroft  on  the  other  side  ;  then  I  would  also  sue 


112 

328  Stone  in  order  to  put  him  in  a  corner,  and  reduce 
him  to  a  nullity.  It  was  decided  to  sue  him  in 
every  way,  on  all  side.  The  last  time  I  heard 
their  conversation  was  on  the  day  of  the  depar 
ture  of  Mr.  Bancroft  and  his  family  from  the 
City  of  Mexico  to  San  Francisco.  That  evening, 
just  when  we  went  to  the  cars  to  see  them  off, 
it  was  the  conversation  of  both  Morrison  and 
Bancroft,  to  sue  Stone  as  soon  as  Bancroft  should 
arrive  in  San  Francisco,  and  could  round  up  mat 
ters  so  as  to  do  it.  That  conversation  was 
simply  to  sue  Stone  and  get  him  out  of  the  His 
tory  Company  in  every  way  possible.  I  was  em 
ployed  by  the  History  Company  at  that  time 
when  these  conversations  occurred.  I  was 
traveling  for  the  sale  of  some  school  books  pub 
lished  by  the  History  Company,  but  at  the  same 
time  I  was  taking  notes  for  writing  up  a  book  on 
the  Resources  and  Probabilities  of  Mexico. 
These  conversations  began  in  December,  1891. 
The  last  conversation  which  I  heard  between 
Morrison  and  Bancroft  in  Mexico,  took  place  on 
the  evening  that  Bancroft  left  for  the  United 
States  ;  I  think  it  was  in  February,  1892.  I 
arrived  in  San  Francisco  on  July  2,  1892. 
I  knew,  while  still  in  Mexico,  that  Bancroft  began 
suit  against  the  plaintiff  after  his  return  to  San 
Francisco  I  also  knew  that  Morrison  began  suit 


331  against  him  after  his  return  to  San  Fran 
cisco.  After  he  returned  to  San  Francisco, 
Bancroft  told  me  I  must  sue  Stone,  and 
must  look  for  a  lawyer  who  would  serve  me,  and 
that  he  would  advance  me  the  money  for  the  suit. 
For  some  reasons  I  did  not  want  to  do  it,  though 
I  professed  a  willingness  to  bring  the  suit. 

Question  by  plaintiff's  counsel  ;     Did   you  get 
a  lawyer.    I  ask  you  if  you  did  in   pursuance    to 
Mr.   Bancroft's  suggestion,  or  instruction,  get  a 
33     lawyer  to  bring  that  suit  ? 

This  question  was  objected  to  by  defendant  on 
the  ground  that  it  was  irrelevant  and  immaterial, 
and  not  responsive  to  any  issue  presented  by  the 
pleadings. 

MR.  REDDY,  Counsel  for  Plaintiff :  I  propose 
to  go  through  the  whole  transaction  between  Mr. 
Bancroft  and  the  witness. 

The  objection  was  overruled  by  the  Court,    to 
,--  which  ruling  defendant  duly  excepted. 
Exception  No.  25. 

A.  I  did  eventually  consult  two  lawyers,  Mr. 
Mitchell  and  Mr,  Eugene  Deuprey,  of  San  Fran 
cisco. 

Q.  After  the  consultation  with  Mr.  Mitchell, 
did  you  report  to  Mr.  Bancroft  ? 

This  question  was  objected  to  by  defendant,  on 
the  ground  that  it  was  irrelevant  and  immaterial, 


H4 

334  and  not  responsive  to  any  issue  presented  by  the 
pleadings  in  the  case. 

Objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  duly  excepted. 

Exception  No.  26. 

A.     Yes,  sir. 

Q.     What  did  you  report  to  Mr.  Bancroft  ? 

This  question  was  objected  to  by  defendant,  on 
the  ground  that  it  was  irrelevant  and  immaterial, 
and  not  responsive  to  any  issue  presented  by  the 
pleadings  in  this  case. 

The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  duly  excepted,  and  there 
upon  it  was  understood  and  agreed  between  coun 
sel  and  the  Court  that  all  of  the  testimony  of 
this  witness  on  this  subject  should  be  deemed  to 
be  objected  to  by  defendant,  the  objection  over 
ruled  by  the  Court,  and  exception  entered  in  de 
fendant's  favor. 
^  Exception  No.  27. 

Witness  continuing  :  After  I  consulted  with 
Mr.  Mitchell,  I  reported  to  Mr.  Bancroft  that, 
according  to  Mr.  Mitchell's  opinion,  I  was  not 
able  to  sue  Mr.  Stone  for  libel,  because  that  of 
fense  which  had  been  furnished  me  was  of  Stone 
in  the  capacity  of  the  company,  which  was,  of 
course,  private  matter,  so  I  had  no  case.  When 
I  informed  Bancroft  that  I  had  no  case,  Mr. 


337  T.  A.  C.  Borland  was  present,  and  he  (Bancroft) 
asked  Dorland  to  find  a  lawyer — one  of  those 
lawyers  that  would  bring  the  matter  in  such  a 
shape  as  to  give  Stone  a  constant  headache,  and 
he  suggested  Mr.  Eugene  Deuprey,  whom  I  con 
sulted.  But  Mr.  Deuprey  said  that  he  could  not 
undertake  the  case,  and  besides,  that  he  never 
would  undertake  a  case  that  would  favor, 
directly  or  indirectly,  such  a  bad  man  as  this  de 
fendant.  I  reported  this  to  the  defendant.  After 

n8 

•*•*     that  he  did  not  talk  about  the  matter  any  more, 

but  he  was  very  cool  with  me.  Mr.  Bancroft 
made  me  an  offer  to  pay  the  expenses  of  a  law 
suit  that  he  was  originating  for  me  to  bring 
against  Stone.  During  the  time  I  was  in  the 
employment  of  the  History  Company  in  San 
Francisco,  I  worked  at  the  office  from  the  time 
of  my  arrival  up  to  the  15th  of  August,  1892, 
and  I  saw  Stone  around  there  most  all  the  time. 
When  I  came  in  or  was  going  out,  I  remember 
most  of  the  time  to  have  seen  him  there  from 
the  15th  of  August  up  to  November  25th,  or 
something  like  that.  I  worked  for  the  History 
Company,  of  course,  but  in  my  own  home,  538 
Haight  Street ;  in  fact,  I  used  to  go  every  day  to 
the  office,  and,  so  far  as  I  can  remember,  Mr.  Stone 
was  in  and  around  from  one  place  to  another,  and 
giving  orders,  or  something  like  that.  He  was 


n6 

340  going  from  one  side  of  the  office  to  the  other,  or 
working  at  his  desk.  From  the  25th  of  Decem 
ber,  up  to  the  time  I  was  with  the  History  Com 
pany,  I  was  a  great  part  of  the  time  outside  the 
office,  looking  after  the  manufacture  of  the  Book 
of  Resources,  and  going  also  to  the  library  on 
Valencia  Street.  Then  I  had  no  occasion  to  be 
in  the  office  much  of  the  time,  but  I  remember 
seeing  Mr.  Stone  around  there. 

Q.     Did  Mr.  Bancroft  ever  speak  to  you  about 

*       not  printing  books  or  matters  of  that  kind  ? 

A.  I  cannot  state  the  words  said  about  that, 
as  I  was  interested  in  the  printing  of  some 
books.  I  remember  well  they  were  opposed  to 
serving  the  orders  that  were  received  with  those 
books,  because  he  did  not  want  Stone  to  receive 
anything  from  them.  The  orders  were  for  the 
purchase  of  books 

Question  by  plaintiff's  counsel :    State  all  that 

14.2  was  sa^  m  re^erence  to  the  books,  and  if  any 
thing  was  said  concerning  Stone? 

This  question  was  objected  to  by  defendant,  on 
the  ground  it  was  irrelevant  and  immaterial,  and 
not  responsive  to  any  of  the  issues  presented  by 
the  pleadings  in  this  case. 

The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  duly  excepted. 

Exception  No.  23. 


117 

343  A.  Defendant  said  that  Stone  should  never 
receive  the  benefit  of  the  book — I  mean  the  ben 
efit  of  the  sale  of  those  books,  or  the  filling  of 
those  orders. 

Question  by  plaintiff's  Counsel:  State  whether 
anything  was  said  concerning  Mr.  Stone,  other 
than  what  you  have  stated,  after  your  arrival  in 
San  Francisco,  with  reference  to  getting  him  out 
of  the  business,  or  anything  of  that  character  ? 

This  question  was  objected  to  by  defendant  on 
the  ground  that  it  was  not  responsive  to  any  issue 
presented  by  the  pleadings  in  this  action. 

The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  duly  excepted. 

Exception  No.  29. 

A.  Defendant  said  Stone  should  not  receive 
any  profits  or  derive  any  benefits  from  the  work 
that  was  going  on  in  the  History  Company,  and 
so  far  as  I  could  understand,  intended  to  deprive 
345  him  of  any  benefit  from  the  work — to  deprive 
Stone  of  any  benefit  of  anything  that  might  be 
received  by  the  company.  I  had  a  conversation 
with  defendant  concerning  a  corporation  called 
the  California  Book  Company. 

Question  by  plaintiff's  counsel :  What  was  that 
conversation  ? 

This  question  was  objected  to  by  defendant  on 
the  sf round  that  it  was  irrelevant  and  immaterial, 


u8 

346  and  not  responsive  to  any  issue  presented  by  the 
pleadings  in  this  action. 

Plaintiff's  counsel  replied  that  he  proposed  to 
show  that  there  was  a  conspiracy  between  the  de 
fendant  and  Morrison  to  transfer  certain  of  the 
assets  of  the  History  Company  to  the  California 
Book  Company.  Whereupon  the  Court  over 
ruled  the  objection  of  defendant,  to  which  ruling 
defendant  duly  excepted. 

Exception  No.  30. 

347 

Witness  continuing:  The  conversation  between 

Bancroft  and  me  was  that  Bancroft,  Morrison 
and  some  others  of  the  directors  of  the  History 
Company  were  to  form  a  new  corporation  called 
the  California  Book  Company,  which  was  to  take 
some  of  the  works  of  the  History  Company  and 
other  works,  and  that  the  History  Company 
would  be  deprived  of  those  works,  and  Stone 
would  not  receive  any  benefit  from  them.  There 
348  were  a  great  many  conversations  of  this  charac 
ter.  I  was  afterwards  informed  by  Morrison  that 
the  California  Book  Company  was  formed,  and  I 
was  also  advised  by  defendant  of  that  fact. 

Question  by  plaintiff's  counsel :  State  whether 
you  were  informed  by  defendant  as  to  whether 
any  business  of  the  History  Company  had  been 
transferred  to  the  California  Book  Company  ? 


349       This  question  was  objected  to  by  defendant  on 
the  ground  that  it  was  irrelevant  and  immaterial, 
and  is  not  an  issue  that  can  be  tried  in  this  case. 
The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  duly  excepted. 
Exception  No.  31. 

A.  I  know  of  my  personal  knowledge  that  the 
publication  of  the  Book  of  the  Resources  and 
Probabilities  of  Mexico  was  taken  away  from  the 
History  Company.  I  am  the  author  of  that 
book.  I  wrote  it  myself. 

Question  by  plaintiff's  counsel:  Who  caused 
that  book  to  be  written — Resources  and  Proba 
bilities  of  Mexico  ? 

MR.  McCuTCHEN,  counsel  for  defendant :  I 
would  like  to  ask  counsel  on  the  other  side,  be 
cause  I  want  it  on  the  record  here  if  there  is  not 
a  case  pending  now  in  the  Superior  Court  of  the 
City  and  County  of  San  Francisco  wherein  Mr. 
251  Stone  is  plaintiff,  and  wherein  Mr.  Bancroft  and 
the  History  Company  are  defendants,  where  that 
very  question  is  in  issue,  and  I  object  to  this 
question  on  the  ground  that  it  is  irrelevant  and 
immaterial,  and  not  responsive  to  any  issue  pre 
sented  for  trial  in  this  case. 

MR.  REDDY  :  We  propose  to  show  that  the  His 
tory  Company  paid  for  the  work  on  that  book, 
and  it  belongs  to  the  History  Company  ;  it  is  part 


120 

352  of  the  History  Company's  property,  and  it  was 
afterwards  transferred  to  the  California  Book 
Company  by  the  defendant  and  others  connected 
with  him. 

The  objection  was  overruled  by   the   Court,  to 
which  ruling  defendant   duly  excepted. 
Exception  No.  32. 

A.  When  I  started  the  original  book,  it  was 
to  be  published  by  the  History  Company.  The 

History  Company,  through  its  directors,  ordered 

353 

me  to  have  circulars  printed,  and  the   expense   of 

the  publication,  so  far  as  I  know,  had  been  paid 
by  the  History  Company,  up  to  the  date  of  the 
formation  of  the  California  Book  Company.  I 
furnished  the  ideas,  and  the  History  Company 
furnished  the  money,  and  the  book  was  written 
by  me,  and  prepared  for  publication,  and  the  sale 
of  it  was  transferred  to  the  California  Book  Com 
pany  by  the  orders  of  the  so-called  author  of  the 
book,  H.  H.  Bancroft — not  the  author,  but  the 
so-called  author.  I  cannot  state  the  exact  date 
when  the  transfer  was  made,  but  it  was  some 
time  in  October,  1892,  or  November,  1892. 

CROSS-EXAMINATION. 

In  the  conversation  that  took  place  in  Mexico, 
the  understanding  was  that  Bancroft  was  to  sue 
Stone,  and  that  Morrison  was  to  sue  him,  and 


121 

355  that  I  was  to  sue  him.  I  was  a  party  to  the  con 
versation,  but  I  was  not  a  party  to  any  agreement 
to  sue  Stone.  I  was  not  hired  for  that  purpose. 
I  said  I  would  sue  Stone  at  that  time,  but  I  did 
not  agree  to  sue  him,  and  I  did  not  sue  him.  I 
recognize  a  difference  between  promising  to  do  a 
thing  and  my  agreement  to  do  a  thing — a  very 
great  difference.  I  was  going  to  sue  Stone  for 
libel.  I  do  not  know,  and  did  not  know  at  that 

time,  what  he  had  said  about  me,  of  my   personal 

^  ^6 

knowledge,  I  never  knew  anything  only  what  Ban 
croft  and  Morrison  told  me  that  Stone  had  said 
about  me.  When  I  went  to  see  Mr.  Mitchell  and 
Mr.  Deuprey,  I  showed  them  a  memorandum  of 
what  I  had  been  told  Stone  had  said  about  me  ; 
that  1  had  misappropriated  $600,  and  that  my 
reckless  way  of  doing  business  was  hard  for  the 
History  Company,  and  that  I  had  misappropri 
ated  $200  more  of  the  moneys  of  the  History 
Company  ;  those  were  the  matters  about  which  I 
went  and  consulted  Mr.  Mitchell  and  Mr.  Deu 
prey.  I  had  a  good  deal  of  feeling  towards  Stone 
at  that  time,  and  was  disposed  to  fight  him  the 
first  interview  I  had  with  him.  I  was  advised 
that  a  good  many  more  things  had  been  said  by 
Stone  about  me  ;  that  he  had  said  a  great  many 
uncomplimentary  things.  I  knew  that  in  order 
to  bring  suit  against  Stone  for  libel,  I  had  to  have 


122 

358  some  writing  signed  by  him  ;  I  was  told  that  that 
writing  was  in  the  copy  books  of  Stone.     I  was 
ordered  to  make  an  investigation  to  see  whether 
there  was  any   such   writing  there  ;  I   did  make 
the  investigation,  but  did   not   find  the   writing. 
The  investigation  was  made  some  time  in  July, 
both  before  and  after  I  went  to  Mr.  Mitchell,  and 
I  did  not  find  any  such  letters  in  the  copy  books, 
as  I  was  told  were  there.     I  went  to  consult  Mr. 
Mitchell  and  Mr.  Deuprey  because  1  was  ordered 
to  do  so.     I  cannot  tell   whether    I    wanted    to 
bring  suit  against  Stone  at  that  time  or  not,  be 
cause  I  did  not  know  the  facts  of  my  own  knowl 
edge  ;  I  did  not  know  exactly  what  I  wanted   to 
do ;  I  did  not  know  what  the  facts  were,  and  was 
unable  to  find  the  facts,  and  I  did  not  know  what 
course  to  take.     I  repeated  to  the  counsel  that  I 
consulted,  the  words  told   me   by   Morrison  and 
Bancroft.     I  told  them  what  Morrison  and  Ban- 
croft  had  told  me.     I  took   some   letters  to   Mr. 
Deuprey,  but   they    were    letters  which    in    my 
opinion  were  not  good  at  all,   and  Morrison   and 
Bancroft  told  me  that  they  held  the  letter  which 
was  a  good  one.     They  gave  me  some  of  the  let 
ters,  but  told   me  that  they    held  still   stronger 
ones  back.     I  have  not  the  letters  in  my  posses 
sion  now.     At  any  rate  they  are  not  here.     The 
letters   which  I  had  were  ones   which  could  be 


123 

361  construed  in  such  and  such  a  way,  but  they  did 
not  contain  direct  charges.  Bancroft  said  he 
had  one  which  would  be  a  big  gun  for  me  to  com 
mence  suit ;  but  I  did  not  show  the  big  gun  to 
either  Mr.  Mitchell  or  Mr.  Deuprey. 

RE-DIRECT     EXAMINATION. 

The  big  gun  which  Bancroft  promised  me 
did  not  materialize.  I  had  been  told  of  charges 
that  had  been  made  by  Stone,  and  when  I  was 
informed  they  were  in  letter  books  written  by 
him,  I  was  referred  to  the  letter  books  and  was 
told  to  examine  them,  and  that  I  would  find  the 
charges,  but  I  did  not,  the  letters  were  not  there. 
I~examined  several  thousand.  After  a  full  ex 
amination  of  that  number  of  letters,  I  found 
there  was  no  direct  charge  against  me.  I  was 
told  by  Bancroft  that  the  rascal  of  a  Stone,  when 
he  wrote  a  letter  that  was  prejudicial  to  any  one, 
.761  he  copied  it  in  a  book  that  he  himself  was  the 
only  one  that  knew  where  the  book  was.  He 
-never  showed  me  that  book.  I  never  saw  it.  I 
believe  it  was  the  copies  of  the  letters  in  that 
book  that  were  the  big  guns. 


N.  J.  STONE, 

being  recalled  for  further  cross-examination,  testi 
fied  as  follows  : 


124 

364       I  never  introduced  Dr.  Miller  to  either  of  the 
persons  constituting  the  Pacific  Publishing  Com 
pany.     I  never  met  him  with  any  member  of  the 
Pacific   Publishing   Company.      I    never   had    a 
conversation  with  Dr.  Miller  and  Mr.  Latham, 
who  was  a  member  of  that  company,  at  Dr.  Mil 
ler's    residence   in    the   city  and  county  of   San 
Francisco,  nor  did  I  ever  have  such  a  conversa 
tion  under  any  circumstances.     I  never  met  Mr. 
Latham   at  the  residence  of  Dr.  Miller  in  San 
^  5  Francisco.      I  never  met  Mr.   Latham   at   any 
place  in  San  Francisco  with  Dr.  Miller.     I  never 
had  any  discussion  with  Latham  with  reference 
to  the  publication  of  Dr.  Miller's  book.     I  never 
consulted  with  Miiler  in  the  office  of  the  History 
Company  at  any  time  about  publishing  his  book. 
I   never  had  any  conversation  with  Mr.  O.   H. 
Elliott  at  any  time  prior  to  the  1st  of  January, 
1892,  in  reference  to  the  publication  of  Dr.  Mil- 
ler's  book.     I  think  Elliott  called  at  my  residence 
during  the  year,  1892,  but  I  do  not  think  I  met 
him  at  my  residence  in  December  of  that  year. 
I  never  had  a  word  of  conversation  with  him  in 
relation  to    the  publication  of  Dr.  Miller's   book 
in  the  year  1892,  either  at  my  residence  or  at  any 
other  place.       I  never  told  him  at  my  residence, 
or  at  any  other  place,  in  the  year  1892,  that  I 
thought  of  publishing  or  taking  an  interest  in  the 


125 

367  publication  of  Dr.  Miller's  book.  I  was  perform 
ing  my  duties  at  the  History  Company  during 
the  whole  of  the  year  1892.  I  do  not  remember 
whether  in  the  year  1891  I  had  a  conversation 
with  Mr.  Elliott  in  the  office  of  the  History 
Company  concerning  the  business  of  that  Com 
pany.  I  think  I  wrote  him  in  August,  1891,  re 
questing  him  to  call  on  me  at  the  History  Company. 
I  may  have  done  so,  I  don't  remember  the  date.  I 
did  not  at  any  time  or  place  state  to  Elliott  that  I 
would  advise  him  not  to  go  to  work  for  the  History 
Company  because  that  company  was  going  to 
pieces.  I  never  made  any  such  statement  at  any 
time  or  place,  nor  under  any  circumstances  or 
condition.  I  never  said  to  Mr.  Elliott,  prior  to 
the  1st  day  of  January,  1893,  that  I  was  going  to 
publish  or  take  an  interest  in  the  publication  of 
Dr.  Miller's  book.  My  desk  began  to  be  moved 
around  from  place  to  place  shortly  after  the  1st  of 

160  Juty'  1892.  At  that  time  the  furniture  in  the 
room  occupied  by  the  History  Company  was  be 
ing  moved  from  one  place  to  another.  At  that 
time  there  were  no  improvements  going  on  there; 
but  some  time  later  there  were  some  shelves  be 
ing  put  up.  There  was  not  anything  being  done 
when  my  desk  first  began  to  be  moved. 

Q.     You  say  towards  the  latter  part  of  your 
visits  there  the  desk  was  put  in  a  place  that  was 


126 

370  inconvenient  for  you,  what  work  was  being  done 
then  ? 

A.  I  said  yesterday  the  room  was  being  filled 
up  with  the  property  of  the  Bancroft  Company. 

Q.  What  was  being  done  at  the  time  you  say 
your  desk  was  moved  ? 

A.  Nothing,  except  that  the  Bancroft  busi 
ness  was  being  stopped.  The  company's  business 
was  being  carried  on  there. 

Q.     The  work  had  stopped  ? 

A.     The  work  had  entirely  stopped. 

PLAINTIFF  RESTS. 


DR.  J.  MILLER 

was  called  as  a  witness   for  defendant  and,  after 
being  duly  sworn,  testified  as  follows  : 

I  am  a  physician  and  surgeon,  engaged  in  the 
practice  of  my  profession  in  the  City  and  County 
of  San  Francisco,  where  I  have  been  engaged  in 
practice  for  eighteen  years.  I  have  my  office  and 
residence  at  No.  1137  Geary  Street.  Have 
known  plaintiff  about  sixteen  years,  and  have  had 
business  transactions  with  him.  My  first  busi 
ness  with  him  was  in  June,  1892.  I  had  my  first 
talk  with  him  at  the  office  of  the  History  Com 
pany  on  Market  Street.  I  showed  him  a  book  of 
which  I  was  the  author  and  solicited  his  advice 


127 

373  and  interest  in  the  selection  of  a  general  agent. 
He  told  me  at  that  time  that  the  History  Com 
pany  was  unreliable,  and  that  he  would  not 
recommend  me  to  place  my  book  with  it,  but  that 
he  had  a  person  in  view  whom  he  thought  was 
the  most  suitable  party  I  could  get.  I  went  to 
see  him  at  that  time  because  I  knew  he  was  con 
nected  with  the  History  Company,  which  was  a 
publishing  house.  He  told  me  he  would  see  the 
party  whom  he  had  in  mind,  and  that  on  Monday 

*'  I  should  call  around  again.  I  did  call  on  him 
two  days  afterwards  at  the  same  place — the  office 
of  the  History  Company,  at  which  time  he  told  me 
he  had  seen  his  party,  and  that  he  was  favorably 
impressed,  and  asked  me  when  and  where  I  could 
make  an  appointment  to  meet  him.  I  made  an 
appointment  to  meet  him  the  following  evening 
at  my  residence.  That  evening  Mr.  Stone  called 
with  a  gentleman  whom  he  introduced  as  Mr. 

o 

**  r  Latham.  He  told  me  that  Mr.  Latham  was  a  mem 
ber  of  the  Pacific  Publishing  Company,  and  that 
he  was  the  party  he  had  in  view.  That  evening, 
after  he  had  introduced  Mr.  Latham  to  me,  we 
spoke  about  the  merits  of  the  work,  and  how  it 
should  be  handled,  and  about  the  price,  and  the 
price  I  was  to  get.  It  was  finally  decided  that 
Mr.  Latham  was  to  handle  my  book,  and  that  I 
was  to  manufacture  it  and  sell  it  to  him  for  sev- 


128 

376  enty-five  cents  a  copy.  I  had  a  conversation  with 
Mr.  Latham  that  evening  in  the  presence  of  Mr. 
Stone  as  to  the  terms  on  which  the  Pacific  Pub 
lishing  Company,  acting  as  general  agent,  would 
sell  my  book.  That  conversation  must  have  lasted 
over  an  hour.  I  did  not  see  Mr.  Stone  after  that 
for  about  two  weeks.  I  next  saw  him  at  my  resi 
dence,  when  I  had  a  conversation  with  him  about 
the  publication  of  my  book.  I  told  him  that  I 
had  notified  Mr.  Latham  to  consider  my  agree- 

f *  '  ment  off,  inasmuch  as  he  had  occupied  two  weeks 
time  to  prepare  for  the  sale  of  my  book,  and  that 
I  had  called  on  him  at  his  office  the  day  previ 
ous  and  found  he  had  not  taken  any  steps  what 
ever  to  find  agents,  I  wrote  him  the  same  evening 
that  I  wanted  to  consider  the  engagement  off. 
Mr.  Stone  told  me  that  perhaps  it  was  just  as 
well  that  I  had  called  the  proposition  off  as  he  ex 
pected  to  be  at  liberty  in  a  few  months,  and  at 
least  by  the  end  of  October,  as  the  suits  he  was 
involved  in  would  be  ended  by  that  time,  and  he 
would  be  ready  to  take  hold  of  the  work  himself 
and  make  a  specialty  of  the  book  and  sell  an  im 
mense  amount — some  two  hundred  thousand 
copies.  I  saw  him  off  and  on  after  that  time  quite 
frequently,  and  had  frequent  conversations,  but 
they  were  general  conversations,  and  the  matter 
dragged  along  until  the  month  of  December. 


129 

379  The  subject  of  the  conversations  which  I  had 
with  Stone  between  the  time  when  he  told  me  he 
thought  he  would  be  free  in  October,  and  the 
month  of  December,  were  always  about  the  sale 
of  the  book.  One  evening,  in  the  month  of  De 
cember,  1892,  I  called  upon  Mr.  Stone — it  was 
the  12th  of  December — and  I  told  him  that  I  had 
a  new  thought,  and  it  was  this  :  That  I  contem 
plated  revising  my  first  edition  and  making  a  sec 
ond  edition,  to  change  the  name  of  the  first  edi 
tion  to  that  of  "  Femina,"  and  that  I  would  cut 
out  the  prescriptions  that  were  in  the  first  edition, 
and  instead  thereof  I  would  insert  specific  terms 
designating  certain  remedies  for  the  cure  of  cer 
tain  diseases  peculiar  to  women,  and  it  occurred 
to  me  as  he  sold  the  book,  he  might,  at  the  same 
time,  establish  a  sale  for  and  sell  the  remedies. 
Mr.  Stone  thought  very  favorably  of  that  propo 
sition,  and  I  told  him  that  I  thought  a  scheme  of 
that  kind  was  feasible,  and  that  I  would  be  will 
ing  to  go  into  a  partnership  with  him,  manufac 
ture  the  book  with  him,  and  also  the  remedies, 
and  divide  the  profits  and  share  the  expenses. 
As  I  said,  that  was  in  December,  1892.  He  said 
he  would  see  me  again  in  a  few  days.  The  next 
morning  after  this  conversation  had  taken  place, 
he  called  at  my  house  and  told  me  that  the  prop 
osition  had  grown  upon  him  all  night,  and  that  he 


1 3o 

382  was  satisfied  it  was  a  big  thing,  and  that  there 
was  a  fortune  in  it  for  both  of  us,  and  that  I 
should  lose  no  time  in  perfecting  all  necessary 
arrangements  so  that  he  might  take  hold  of  the 
proposition.  The  matter  rested  there  about  three 
days,  and  after  that  he  called  on  me  again  and 
said  the  more  he  thought  of  the  proposition  the 
more  he  was  convinced  that  there  was  a  good 
deal  of  money  to  be  made,  and  that  I  should  lose 
no  time  in  perfecting  the  arrangements.  I  said 

3  3  that  I  had  been  thinking  over  the  matter,  and  it 
required  a  great  deal  of  work  and  considerable 
capital  to  go  in  the  business  and  we  had  better 
enter  into  a  written  agreement.  He  said  it  was 
impossible  for  him  to  do  that  inasmuch  as  he  was 
mixed  up  with  litigation,  but  he  gave  me  his  hand 
and  word  of  honor  that  I  should  go  along  as  an 
equal  partner  and  pay  that  which  was  necessary, 
and  whenever  we  got  started  in  the  business  he 

184  would  reimburse  me  for  his  part  of  the  outlay, 
and  upon  that  I  continued  to  work  out  the  prop 
osition. 

Q.  Was  that  statement  of  his  to  you,  when 
he  shook  hands  with  you  and  said  from  that  time 
you  were  partners,  made  in  the  month  of  Decem 
ber,  1892  ?  Was  that  in  the  month  of  December, 
1892? 


385  A.  Yes,  sir.  I  saw  Mr.  Stone  every  two  or 
three  days  after  that  and  had  conversations  with 
him.  The  subjects  of  those  conversations  were 
our  business — the  business  in  which  we  were  both 
engaged,  and  in  which  we  were  partners.  From 
time  to  time  I  acquainted  him  with  what  I  was 
doing,  and  we  continued  in  this  business  until  the 
month  of  October,  1893.  It  was  partly  trans 
acted  at  No.  1137  Geary  Street  and  partly  at 

1018  Valencia  Street.     We  transacted  the  busi- 

•*86 

ness  on  Valencia  Street  from  June,   1893.       In 

October,  1893,  there  was  a  disagreement,  and  the 
result  was  that  I  was  forced  into  a  dissolution  of 
the  partnership — the  partnership  existing  between 
me  and  Mr.  Stone.  I  executed  some  papers  at 
that  time. 

(Witness  is  shown  defendant's  Exhibit  No.  3.) 

I  saw  Mr.  Stone  sign  that  paper.     He  read  it, 

looked  it  over  very  carefully  before  he  signed  it. 

,37  I  also   saw  him  sign  defendant's  exhibit  No.  4. 

He  looked    that  over  very  carefully.      We  had 

letter-heads  in  that  business. 

One  of  the  letter-heads,  which  reads  as  follows, 
"THE  FEMINA  COMPANY, 
1018  Valencia  Street. 
N.  J.  STONE,       Manager, 

SAN  FRANCISCO,  CAL., 189 — 

was  offered  in  evidence  and  marked  "  Defendant's 
Exhibit  No.  6." 


132 

388       I  know  those  letter-heads  were   used  by   Mr. 
Stone. 

CROSS-EXAMINATION. 

The  conversation  with  Stone  at  the  office  of  the 
History  Company  was  in  June,  1892.  My  visit 
to  him  was  for  the  purpose  of  having  some  advice 
as  to  procuring  a  general  agent.  My  book  was 
already  published  and  in  my  possession.  I  wanted 

Stone  to  assist  me  in  placing  the   book  on    sale 
389 

with  a  general  agent.      I  had    known    Stone    for 

about  fourteen  years  before  that  time.  I  have 
been  in  San  Francisco  about  eighteen  years,  and 
have  lived  there  since  1864,  with  the  exception 
of  two  years  tn  Europe.  I  had  not  inquired  for 
anybody  else  up  to  that  time  in  whose  hands  I 
could  place  my  book  for  sale.  I  first  consulted 
Mr.  Stone.  He  told  me  that  the  History  Com 
pany  was  unreliable,  and  he  would  not  advise  me 
390  to  place  the  book  with  it,  but  that  he  had  a  party 
in  view  that  he  considered  to  be  exactly  suitable 
for  handling  my  book  successfully.  No  one  else 
was  present  at  this  conversation.  That  was  be 
tween  Stone  and  me  in  the  History  Company's 
office,  and  it  was  about  eleven  o'clock  in  the 
morning.  I  next  saw  him  two  days  after  that, 
and  he  then  informed  me  that  he  had  been 
speaking  to  the  person  that  he  had  in  mind  at  the 


133 

time  of  the  former  conversation  with  me,  and 
wanted  to  make  an  appointment  between  that 
person  and  me.  The  appointment  was  made  to 
meet  at  my  residence.  No  one  was  present  when 
Stone  and  Latham  called  except  me.  Dr.  Lat 
ham  is  dead.  He  died  about  three  or  four  months 
after  that  time.  Latham  was  not  to  handle  any 
of  my  medicines  with  the  book,  he  was  simply 
to  handle  the  book.  It  is  not  a  fact  that  my 
medicines  poisoned  Mr.  Stone's  boy.  I  called 
to  attend  his  boy  at  one  time,  whom  I  found 
suffering  from  belladonna  poison,  which  he  ob 
tained  in  the  office  of  the  Femina  Company,  of 
which  Mr.  Stone  was  manager,  and  of  which  he 
had  complete  charge.  I  do  not  know  that  it  was 
out  of  a  bottle  of  some  of  iny  prepared  medicines 
that  he  obtained  the  poison.  I  was  not  there 
when  he  took  it,  and  do  not  know.  Mr.  Stone 
did  not  inform  me  that  the  boy  received  the 
poison  out  of  the  office.  I  attended  the  boy  pro 
fessionally,  and  afterwards  sent  a  bill  to  his  father 
for  five  hundred  dollars,  which  he  did  not  pay. 
He  refused  to  pay  it,  and  it  has  not  been  paid. 
I  was  in  attendance  on  the  boy  on  that  occasion 
about  five  hours,  and  it  was  worth  one  hundred 
dollars  an  hour.  My  relations  to  Stone  did  not 
become  strained  after  that ;  we  were  friendly  af 
ter  that.  My  feelings  were  just  the  same  after 


134 

394  he  had  refused  me  one  hundred  dollars  an  hour 
for  attending  upon  his  boy  as  they  were  be 
fore.  He  and  his  wife  thanked  me,  and  seemed 
more  grateful  than  they  ever  were  in  their  lives. 
That  was  after  the  boy  was  saved  from  poison, 
but  the  bill  for  it  was  not  rendered  until  after  the 
dissolution  of  the  partnership.  My  feeling  to 
ward  Stone  was  not  the  same  after  the  bill  was 
presented  and  refused  as  they  had  been  for  weeks 
and  months  before.  My  feelings  changed  consid 
erably,  and  my  feelings  towards  him  have  not  im 
proved  since  that  time,  They  have  not  grown 
worse  daily.  I  have  dismissed  him  from  my 
mind,  and  have  dismissed  the  matter  from  my 
mind.  I  presented  the  bill  but  took  no  further 
steps  to  collect  it.  I  did  not  say  that  Stone  told 
me  that  I  should  perfect  arrangements  as  soon  as 
I  could  as  he  might  enter  the  business  :  I  said 
that  he  said,  he  would  enter  the  business.  He 
did  decline  to  enter  into  a  written  agreement  with 
me;  no  written  agreement  was  ever  entered  into. 
I  have  stated  the  substance  of  the  conversations 
right  along  as  1  remember  them,  and  have  given 
the  full  substance  of  all  that  transpired  between 
us.  After  he  had  declined  to  enter  into  a  writ 
ten  agreement  with  me,  he  gave  me  his  hand  and 
word  of  honor,  and  said  that  from  that  time  on 
we  would  go  forward  as  partners  in  business. 


135 

397  There  was  no  one  present  at  that  time  except 
Stone  and  myself.  This  conversation  occurred  in 
the  month  of  December,  in  the  forenoon,  at  my 
office.  I  saw  him  after  that  every  two  or  three 
days,  at  my  office  or  at  his  house.  There  was  not, 
at  that  time,  any  other  place  for  carrying  on  our 
business  except  at  my  office.  In  March  another 
place  was  rented,  but  we  did  not  move  into  it  un 
til  June.  Mr.  Stone  was  acting  in  this  business 
from  December  until  June.  I  deputed  him  to  do 

o 

a  good  many  things,  and  he  returned  the  report 
to  me.  The  first  thing  he  did  was  to  get  a  post- 
office  order  for  twenty -five  dollars.  That  post- 
office  order  was  issued  for  a  trade-mark  in  our 
business. 

Q.  Did  Mr.  Stone  do  anything  in  the  way  of 
publishing  your  book  between  December  and  June 
following  ? 

A.     Yes,  sir. 

300  During  that  tinie  Mr.  Stone  got  out  the  second 
edition.  The  first  edition  I  got  out  myself  and 
had  it  printed  in  Oakland.  The  second  edition 
was  printed  in  San  Francisco  ;  the  printing  and 
binding  was  done  by  the  Hicks-Judd  Company, 
and  the  contract  with  them  was  made  by  Mr. 
Stone.  I  do  not  know  when  he  made  the  con 
tract,  I  did  not  have  anything  to  do  with  it,  nor 
with  paying  the  bill.  Mr.  Stone  was  supposed 


136 

400  to  have  paid  it,  he  said  he  paid  it,  and 
I  believe  that  he  did.  I  afterwards  refunded 
him  the  money.  The  first  edition  of  the 
book  I  had  had  printed  before  talking  with 
Mr.  Stone.  The  second  edition  was  gotten 
up  later.  Must  have  been  gotten  out  in  May  or 
June,  or  it  may  have  been  a  little  later  ;  specimen 
copies  were  certainly  out  in  June.  That  was  not 
all  Mr.  Stone  did  during  the  months  inter 
vening  between  July,  1892,  and  April,  1893.  He 
advised  with  me  continually  ;  we  met  as  a  rule  in 
the  afternoon  for  consultation.  The  History 
Company  had  nothing  to  do  with  my  book,  and 
it  never  engaged  in  the  publication  of  it;  nor  in 
any  other  matter  that  I  had  for  publication.  As 
nearly  as  I  can  state  the  conversation  in  which 
Stone  stated  to  me  that  the  History  Com 
pany  was  unreliable,  I  requested  him,  if  he  could, 
to  assist  me  to  place  the  book  with  a  general 

402  agent  who  would  handle  it  to  the  best  advantage, 
and  he  volunteered  the  information  that  the  His 
tory  Company  was  unreliable,  and  he  would  not 
recommend  me  to  give  it  the  book,  but  that  he 
had  a  person  in  view  whom  he  could  recommend. 
That  was  all  of  the  conversation.  I  remember 
that  he  used  the  words  "  the  History  Company 
is  unreliable  "  I  do  not  remember  all  of  the  other 
words  used  in  the  conversation,  but  remember 


137 

403  their  import.     I  cannot  remember  each  and  every 
word  used  in  the  conversation. 

Q.  Can  you  testify  to  any  exact  words  used 
by  him,  except  the  History  Company,  and  that  it 
was  unreliable  ? 

A.     That  is  the  key-note.     I  remember  that. 

Q.  You  remember  those  words  exactly,  but 
the  other  words,  as  I  understand  you,  you  would 
not  undertake  to  repeat  ? 

A  No,  sir.  At  the  time  defendant's  exhibits 
3  and  4  were  executed,  I  remember  I  observed 
and  noted  closely  whether  Mr.  Stone  was  reading 
the  documents.  I  did  not  observe  that  he  was 
reading  them  carefully,  but  observed  that  he 
looked  over  the  documents  with  care  as  though 
he  was  reading  them.  This  took  place  in  the 
office  of  Judge  Van  Reynegom.  There  was  no 
one  else  there  when  he  looked  over  the  papers. 
One  of  the  papers  was  prepared  by  Judge  Van 
405  Reynegom,  and  the  other  by  Mr.  Metson. 
I  was  not  there  before  Mr.  Stone  and  Mr.  Metson 
came.  Mr.  Metson  came  later.  Mr.  Stone  had 
both  of  these  papers  off  and  on  for  a  week.  He 
scanned  these  papers  very  carefully,  I  observed 
that.  A 

Q.  Why^Klid  you  observe  so  carefully  that 
fact  ?  That  Stone  was  reading  the  papers  care 
fully,  when  he  had  with  him  his  attorneys,  or 
when  he  was  acting  through  an  attorney  ? 


406  A.  I  was  studying  character;  I  make  a  study 
of  that.  It  was  a  matter  of  following  out  the 
bent  of  my  mind,  in  examining  and  watching  peo 
ple  to  see  what  they  do  and  examine  character, 
and  that  is  what  caused  me  to  observe  Mr. 
Stone's  conduct  in  reference  to  the  papers.  Be 
tween  July  and  October,  1892,  when  those  papers 
were  drawn,  the  business  was  carried  on  by  Stone 
and  some  employees.  I  had  some  trouble  with 
Stone  about  money  matters.  That  trouble  began 
'  after  we  were  about  three  months  in  business 
— about  two  and  a  half  months — it  was  some 
where  along  about  April,  and  the  trouble 
increased.  The  defendants  in  this  case  became 
acquainted  with  the  private  matters  which  oc 
curred  between  Stone  and  me  because  a  third 
party  was  about  to  associate  with  us  in  the  busi 
ness,  and  that  party  was  intimately  acquainted 
with  the  differences  between  Stone  and  me,  and 

408  he  seems  to  be  a  friend  of  Mr.  Bancroft,  and 
that  is  how  I  was  dragged  into  this  affair,  I 
first  disclosed  to  the  people  connected  with  the 
defense  of  this  action  the  facts  I  have  testified 
to,  about  three  weeks  ago.  They  called  upon  me 
for  a  letter  book,  and  told  me  why  they  wanted 
it,  and  I  gave  it  to  them,  and  gava  them  all  the 
papers  they  wanted  in  reference  to  that  business, 
that  was  about  three  weeks  ago. 


409  RE-DIRECT    EXAMINATION. 

The  third  party  who  was  to  have  an  interest  in 
this  business  was  Mr.  Elliott.  The  bill  for  five 
hundred  dollars  for  services  rendered  to  Mr. 
Stone's  child  was  given  to  Stone  before  the  disso 
lution  papers  were  signed,  but  he  did  not  recog 
nize  it,  so  I  did  not  push  it.  He  did  not  want  to 
pay  it,  and  I  dropped  it.  Both  he  and  the  mem 
bers  of  his  family  seemed  to  be  very  grateful  for 

the  services  which  I  had   rendered  in    restoring 
410 

the  child  to  health,  and  I  have  never  been  com 
pensated  for  it  to  any  extent. 

O.  H.  ELLIOTT 

was  called  as  a  witness  for  defendant,  and  after 
being  duly  sworn,  testified  as  follows: 

I  am  a  publisher,  and  reside  in  San  Francisco, 
and  have  resided  there  off  and  on  for  nearly  forty 
411  years-  I  know  the  parties  to  this  action,  and 
have  known  Stone  twenty -seven  years  and  Ban 
croft  for  thirty  years.  Have  had  business  rela 
tions  with  both  of  them.  In  the  month  of 
August,  1891,  I  had  a  conversation  with  Stone 

o  ' 

in  the  office  of  the  History  Company,  in  the  City 
and  County  of  San  Francisco.  No  one  was 
present  but  ourselves.  Bancroft  had  spoken  to 
me  several  times  about  going  to  work  for  the 


140 

412  History  Company,  and  in  July  he  spoke  to  me 
again  about  it,  and  mentioned  a  salary  that  he 
thought  I  could  earn,  at  least  $500  a  month,  and 
in  August  Mr.  Stone  sent  for  me  and  offered  me 
$300  a  month,  and  I  told  him  I  was  then  on  the 
eve  of  purchasing  a  patent  bed  and  go  into  the 
manufacture  of  the  same.  He  requested  and  ad 
vised  me  to  do  so,  and  stated  that  the  business  of 
the  History  Company  was  going  to  pieces,  that 
it  amounted  to  nothing,  and  that  Bancroft  was 

A  T  1. 

very  unreliable  and  could  not  be  depended  upon. 
He  advised  me  not  to  take  employment  under  the 
History  Company  at  that  time.  He  told  me 
that  Bancroft  had  requested  him  to  send  for  me; 
that  he  had  urged  him  to  engage  me  for  the 
Chronicle,  a  book  they  were  then  publishing,  en^ 
titled  the  Chronicles  and  Builders.  I  told  him  I 
had  some  other  scheme  on  hand,  and  told  him 
what  it  was.  He  advised  me  to  buy  the  patent 
and  to  secure  all  the  territory  possible,  and  to 
acquire  the  rights  in  China  and  Japan  and  the 
Pacific  Islands,  and  if  I  built  up  the  business  and 
got  it  on  a  paying  basis,  he  would  take  an  inter 
est  in  it.  I  think  I  talked  with  him  about  an 
hour  in  reference  to  that  business,  and  he  said  he 
would  like  to  recommend  me  a  bookkeeper,  and  he 
recommended  Mr.  Moore,  and  gave  me  a  letter 
of  introduction  to  him,  and  I  appointed  Mr. 


415  Moore  bookkeeper  in  the  business  in  which  I  pro 
posed  to  engage.  In  December,  1892,  at  Stone's 
residence,  I  had  a  conversation  with  him  in  refer 
ence  to  the  publication  and  sale  of  a  book  called 
"  Femina."  He  took  down  the  book  out  of  his 
library  and  showed  it  to  me,  and  went  on  to  state 
the  contents  of  the  book,  and  how  valuable  a 
book  it  was,  and  it  would  have  a  very  great  sale. 
I  told  him  it  was  not  large  enough,  and  he  said  he 
was  then  in  consultation  with  the  doctor  for  a 
new  edition,  in  which  they  were  going  to  enlarge 
it;  it  would  sell  anywhere  in  connection  with  the 
remedies;  he  could  sell  it  to  his  brother  or  any 
one  he  tried,  or  anywhere.  It  was  a  book  that 
an  agent  could  go  anywhere  and  get  an  order  for. 
In  this  conversation,  which  took  place  in  August, 
1891,  Stone  told  me  to  be  very  careful  about  the 
fact  that  he  had  advised  me  not  to  go  to  work  for 
the  History  Company,  and  not  to  say  anything  to 
the  old  man  about  it;  that  is  the  way  he  ex 
pressed  himself.  In  December,  1892,  I  had  in 
terviews  with  Stone  very  frequently  in  relation  to 
the  publication  and  sale  of  Femina.  He  told  me 
he  was  going  in  with  a  doctor,  but  did  not  state 
the  name  of  the  doctor  until  February,  1893. 
He  took  me  out  to  Valencia  Street,  where  they 
were  going  to  have  an  office,  and  showed  me  the 
place  and  the  rooms  they  were  going  to  occupy, 


142 

418  and  said  he  would  admit  me  as  a  partner  to  the 
extent  of  a  third  interest  in  the  business.  On 
the  24th  of  May,  1893,  he  borrowed  $500  from 
me  to  pay  for  the  paper  for  the  second  edition  to 
the  Hicks-Judd  Company,  and  the  Hicks-Judd 
Company  showed  me  the  books  that  were  printed 
and  turned  out  on  the  19th  day  of  June,  1893. 
He  borrowed  this  money  from  me  to  pay  for  the 
paper  in  May,  1893 — the  24th  of  May — and  he 
showed  me  the  bill  for  the  paper.  The  Hicks- 
Judd  Company  showed  me  their  books  where 
they  had  received  that  money  from  him. 

"CROSS-EXAMINATION. 

I  am  now  engaged    in  the  publishing  business 
at  1842  Capp  Street. 


H.  M.  MONK 

420  was  called   as  a  witness  for  defendant,  and   after 
being  duly  sworn,  testified  as  follows  : 

I  am  an  employee  of  the  History  Company, 
having  charge  of  the  subscription  department.  I 
have  been  in  the  employment  of  the  company 
since  the  6th  day  of  August,  1892.  From  the 
6th  of  August,  1892,  until  the  beginning  of  1893, 
I  spent  rny  time  in  the  capacity  of  bookkeeper 
for  the  History  Company  in  the  large  room  now 


143 

421  occupied  by  the  Bancroft  Company  as  a  book 
store.  I  had  a  desk  in  that  room.  From  the 
6th  of  August,  1892,  to  the  1st  of  February, 
1893,  Stone  apparently  spent  very  little  time  in 
the  office  of  the  History  Company,  I  could  not 
state  definitely.  Some  days  he  would  not  be 
there  but  a  very  little  while;  it  might  be  for  an 
hour,  it  might  be  for  three  hours.  I  think  there 
were  many  days  between  those  two  dates  that  he 
was  not  there  more  than  an  hour.  I  don't  think 

A.2  2 

more  than  half  the  time  between  August,  1892, 
and  February,  1893,  he  was  there  during  the  en 
tire  business  hours  during  the  day,  say  from  nine 
o'clock  in  the  morning  until  four  or  five  in  the 
afternoon.  I  do  riot  think  he  was  there  half  of 
the  time  during  business  hours  between  those 
dates.  During  that  time  there  were  improve 
ments  being  made  in  the  room  occupied  by. the 
History  Company.  Carpenters  were  employed 
in  putting  up  shelves,  arranging  counters,  etc.,  and 
fitting  up  the  place  for  a  book  store.  That  neces 
sitated  the  movement  of  the  furniture  that  was 
in  History  Company's  office.  Such  desks  and 
furniture  as  were  movable,  were  moved  around 
when  the  carpenters  were  at  work  there;  they 
were  moved  as  occasion  required,  just  far  enough 
to  get  them  out  of  the  way.  Only  two  desks  in 
the  office  were  movable,  and  they  were  both 


144 

424  moved.  The  desk  that  I  used  was  not  moveable; 
it  was  stationary.  There  was  a  counter  and 
chairs  in  the  room,  and  general  office  furniture. 
The  chairs  were  moved.  There  was  a  safe  and 
that  was  not  moved  until  the  very  last.  There 
were  typewriters  there  and  they  were  moved. 
Desks  which  had  been  stationary  previous  to  that 
time  were  moved  when  occasion  required  it.  As 
soon  as  the  carpenters  commenced  at  the  Market 
Street  end  of  the  building  and  worked  southerly, 
**  our  desks  were  all  in  the  southerly  part  of  the 
building  and  when  the  carpenters  worked  up  to 
where  we  were,  we  were  all  moved.  Everybody 
was  interfered  with  to  a  great  extent  while  the 
work  was  going  on. 

CROSS-EXAMINATION. 

I  occasionally  took  notes  of  the  time  Mr. 
Stone  remained  in  the  office.  I  took  notes  of  his 
426  presence  there.  I  think  Mr.  Bristol,  who  had 
charge  of  the  subscription  department  at  that 
time,  told  me  to  do  so.  No  one  else  told  me.  I 
made  a  record  of  it.  I  do  not  know  where  the 
writing  is  now.  I  turned  it  over  to  Mr.  Bristol, 
and  he  made  his  minutes  in  the  books  every  day. 
I  was  in  the  same  room  with  Stone.  We  occu 
pied  the  same  room;  our  desks  were  quite  close 
to  one  another.  I  think  Stone  was  away  about 


427  half  the  time.  The  notes  which  I  spoke  of  are 
here,  or  rather  the  notes  which  I  made  are  not 
here.  I  turned  them  over  to  Mr.  Bristol,  and  he 
put  them  down  in  this  book.  I  made  notes  from 
which  I  could  refresh  my  memory  if  I  had  them 
here.  I  saw  the  notes  which  I  made  this  last 
week;  I  just  glanced  at  them  casually. 

[Book    handed    witness.       Witness    identifies 
some  of  the  notes  as  his  and   some  as  Bristol's.] 

I  turned  my  notes  over  to  Mr.  Bristol  in  the 
o  * 

evening.  Mr.  Bristol  had  the  book  all  the  time, 
and  I  made  notes  from  time  to  time;  I  made 
notes  on  the  spot  on  my  desk,  and  at  night 
I  turned  them  over  to  Mr.  Bristol,  and  he 
entered  them  in  this  book.  This  is  not  in  my 
handwriting.  I  would  turn  them  over  in  the 
evening,  and  that  is  the  last  I  saw  of  the  notes. 
Sometimes  I  read  the  notes  to  him  and  he  would 
put  them  down.  I  could  not  tell  how  many  times 
420  I  kept  run  of  the  hours  that  Stone  was  there.  I 
cannot  approximate;  I  did  not  keep  the  record 
the  whole  of  the  time  from  the  6th  of  August 
up  to  February,  1893.  I  think  I  kept  it  until 
about  November,  but  not  all  the  time.  Between 
August  and  November  I  said  I  thought  that  Stone 
was  there  half  the  time.  I  aimed  to  keep  this 
record  all  of  the  time  between  August  and  No 
vember,  but  I  may  not  have  done  so  regularly.  I 


146 

430  could  not  tell  you  how  many  times  I  put  the  time 
down,  as  I  have  said,  I  did  it  from  August,  or 
shortly  thereafter,  until  the  end  of  November.  I 
aimed  to  keep  the  account  regularly  between  those 
times;  I  may  have  missed  some  of  the  days.  As 
to  the  number  of  days  I  missed,  I  could  not  tell 
you.  I  would  say,  according  to  my  best  judg 
ment,  that  I  kept  a  record  half  of  the  time  be 
tween  those  dates.  This  is  only  guess  work.  I 
am  not  positive  about  it;  I  don't  think  I  kept  any 

A  *?  T 

^  count  after  November.  I  did  not,  at  the  time  I 
made  that  record,  expect  to  be  a  witness  against 
Mr.  Stone.  I  kept  the  record  because  I  was 
asked  to  do  it.  Mr.  Bristol  is  now  in  Chicago. 
He  has  been  there  for  some  time,  and  is  in  the 
employ  of  Mr.  Bancroft.  At  the  time  I  speak  of 
he  was  in  the  employment  of  the  History  Com 
pany.  I  did  not  know  at  the  time  I  was  instruct 
ed  by  Bristol  to  keep  an  account  of  Stone's  time, 

4 .,  2  that  there  was  any  scheme  to  injure  him.  I  was 
never  told  that.  I  am  trying  to  tell  you  what  I 
know,  not  what  I  thought.  I  did  not  know  at 
the  time  I  received  this  order  to  keep  an  account 
of  the  time,  that  it  was  a  movement  to  injure 
Stone  or  not.  I  did  not  question  them  as  to 
what  they  wanted  to  do.  I  did  not  make  any 
inquiry  one  way  or  the  other  as  to  what 
use  this  record  was  to  be  put.  Of  course, 


147 

433  I  don't  know  what  their  object  was  in  keep 
ing  the  record,  but  I  presume  it  was  to  know 
whether  Stone  was  earning  his  salary  or  not.  I 
will  state  that  I  was  keeping  the  time  of  the 
other  employees  as  well;  that  was  part  of  my 
duty.  It  was  part  of  my  duty  to  keep  the  time 
book,  but  I  did  not  keep  as  close  a  record  of  the 
other  employees  as  I  did  of  Mr.  Stone.  I  did 
not  keep  any  record  of  Mr.  Stone  after  Novem 
ber,  because  I  do  not  think  he  was  around  the 

^  office  after  that  time  to  any  great  extent;  he  may 
have  come  around,  but  that  is  my  impression  ; 
after  the  last  of  November  he  was  around  the 
office  very  little,  and  it  was  for  that  reason  I  did 
not  keep  any  record.  I  do  not  know  how  many 
times  he  was  there  after  November.  When  I 
say  I  think  he  was  not  there  to  any  great  extent, 
I  am  simply  giving  my  impression  to  the  best  of 
my  knowledge,  but  I  do  not  state  it  positively. 


GEORGE    EDWARDS 

was  called  as  a  witness  for  defendant,  and,  after 
being  duly  sworn,  testified  as  follows  : 

I  am  connected  with  the  History  Company, 
and  have  been  employed  by  that  company  since 
1886.  I  was  employed  by  the  History  Company 
during  the  entire  year  of  1892.  After  July,  1892, 


148 

436  Mr.  Stone's  attendance  became  more  and  more 
irregular  ;  I  cannot  definitely  fix  the  exact  time, 
but  I  should  say  that  early  in  1892  he  was  there 
pretty  much  all  the  time,  and  less  and  less  each 
day,  and  finally  he  called  in  for  a  few  minutes,  and 
at  the  end  of  the  year  I  should  say  his  visits 
ceased  altogether.  His  visits  grew  gradually  less 
—  they  grew  less  frequent. 

Q.  And  you  think  before  the  end  of  the  year 
1892  he  had  stopped  coming  there  altogether  ? 

A  *2  T 

A.  Well,  he  may  have  called  in  the  office  oc- 
casonially,  once  in  three  or  four  days  after  that. 
The  length  of  his  visits  when  he  did  come  grew 
shorter  towards  the  end  of  1892  ;  they  grew 
shorter  gradually.  He  would  stay  there  a  little 
less  time  each  visit,  and  towards  the  end  of  the 
year  he  ceased  altogether  to  call  at  the  office. 


... 

CROSS-EXAMINATION. 

I  have  charge  of  the  collection  department.  I 
was  in  the  office  most  of  the  time.  I  did  the  col 
lection  by  correspondence.  I  did  not  collect  per 
sonally.  I  was  in  the  office  pretty  much  all  the 
time  daily,  except  when  I  went  out  to  get  lunch. 
I  was  in  the  same  room  with  Stone.  It  was  only 
a  general  observation  of  Stone's  attendance.  It 
grew  gradually  less  and  less,  but  I  cannot  fix  the 
date  exactly.  I  should  think  there  were  five  or 


149 

439  §ix  desks  in  the  room  occupied  by  Stone  and  me. 
In  November,  1892,  I  think  pretty  much  all  of 
the  desks  had  been  moved  out.  When  the  shelves 
were  put  up,  the  desks  were  moved  out,  the  office 
being  extended  and  opened  up  to  the  front  of  the 
building.  There  were  two  desks  in  the  room 
that  Mr.  Stone  and  I  formerly  occupied.  I  occu 
pied  one  and  the  cashier  the  other — no,  there 
were  three  desks,  one  long  desk,  one  joining  the 
cashier's  desk,  and  back  of  that  my  desk.  Across 
the  end  of  the  office  was  a  long  counter,  inside  the 
counter  were  the  cashier's  desks,  two  long  desks. 
At  that  time,  early  in  1892,  Mr.  Hartwell  was 
the  cashier,  then  Mr.  Staib.  I  think  at  that 
time  Mr.  Stone's  desk  also  was  inside  the  counter, 
and  my  own  was  a  large  desk  a  little  outside  the 
counter.  I  do  not  know  what  became  of  Stone's 
desk  eventually.  Everything  was  moved  around 
somewhere.  Stone's  desk  remained  there,  and 

44  r  after  awhile  I  lost  track  of  it.  It  was  removed 
from  the  office — it  disappeared.  At  the  time  it 
disappeared  Mr.  Stone  was  not  using  it.  I  should 
say  it  was  removed  the  latter  part  of  1892,  but  I 
might  be  mistaken.  After  Stone's  desk  was  re 
moved,  Mr.  Dorland,  the  Treasurer  of  the  Ban 
croft  Company  and  the  Treasurer  of  the  History 
Company,  and  myself  and  Mr.  Monk  occupied 
desks  there.  After  Stone's  desk  was  removed  all 


442  of  the  other  desks  there  were  not  occupied.  I 
think  after  a  time  some  of  the  desks  were  not  oc 
cupied,  but*  after  some  of  them  were  removed 
those  that  remained  were  occupied.  I  think 
about  the  time  Stone's  desk  was  moved,  nearly  all 
the  desks  were  moved  out.  My  own  desk  was 
taken  out  of  the  office  and  another  one  the  same 
size,  and  then  I  took  a  smaller  desk  which  I  now 
occupy.  There  were  three  desks  which  remained 
there  after  Stone's  desk  was  moved  out,  one  was 

™  occupied  by  Mr.  Dorland,  one  by  Mr.  Petersen, 

and  one  by  Miss .     There  was  no  desk 

there  for  Stone  in  the  latter  part  of  1892.  Every 
thing  disappeared  from  the  office.  The  furniture 
of  the  office  was  moved — everything  taken  out 
except  these  desks,  they  were  in  actual  use.  It  is 
my  impression  that  Stone  visited  the  place  after 
his  desk  was  removed  occasionally,  but  not  every 
day.  I  should  say,  in  a  rough  way,  once  a  week, 

. ,  or  once  in  two  or  three  weeks. 
444 


GEORGE   H.  MORRISON 

was  called  as  a  witness  for  defendant,  and  after 
being  duly  sworn,  testified  as  follows  : 

I  reside  in  San  Francisco,  and  have  resided  there 
folr  five  or  six  years.  I  am  a  member  of  the  His 
tory  Company,  and  have  been  for  about  four  or  five 


445  years-  I  never,  at  the  office  of  the  History 
Company,  nor  at  any  other  place,  in  the  year 
1892,  instructed  Miss  Hayes  not  to  take  any  dic 
tation  from  Mr.  Stone.  I  never  told  any  steno 
grapher  employed  by  the  Historjr  Company  that 
he  or  she  should  not  take  a  dictation  from 
Stone.  I  never  told  Miss  Hayes,  at  the  office  of 
the  History  Company,  or  at  any  other  place,  that 
Mr.  Stone  was  not  working  for  the  company,  and 
had  no  right  in  the  office.  I  never  told  anybody 
employed  by  the  History  Company,  that  Mr. 
Stone  had  been  discharged  or  dismissed.  I  never 
knew  that  he  had  been  discharged  or  dismissed. 
He  never  was  discharged  or  dismissed  to  my 
knowledge.  I  never  told  Trigo,  and  never  stated 
in  his  presence  in  the  City  of  Mexico,  or  at  any 
other  place,  that  Mr.  Stone  was  going  to  be  put 
out  of  the  History  Company.  I  never  had  any 
such  thought  or  knowledge.  I  told  Trio-o  that 

• '  .  ^  o  O 

A  An  I  had  written  Stone  that  I  should  hold  him  per 
sonally  responsible  for  selling  out  the  Eastern 
agency  of  the  History  Company  without  my 
knowledge  or  consent.  At  that  time  the  Eastern 
agency  of  the  History  Company  had  been  sold. 
That  was  my  understanding  of  it.  I  was  a  stock 
holder  of  the  History  Company  at  that  time.  I 
had  been  informed  of  it  prior  to  the  statement  to 
Trigo,  and  told  him  that  I  should  hold  Stone 


448  responsible  under  the  law  for  selling  it  out.  I  think 
I  showed  him  (Trigo)  a  letter  to  that  effect  which 
I  wrote  to  Stone  ;  that  was  the  only  litigation  I 
ever  talked  about  to  Trigo,  or  in  his  presence,  of 
having  with  Stone,  except,  perhaps,  when  Trigo 
talked  to  me  about  bringing  the  suit  against  Stone 
for  libeling  his  character.  I  may  have  had  some 
conversation  with  him  about  that.  At  that  time 
Trigo  talked  to  me  about  bringing  suit  against 
Stone,  he  was  determined  to  bring  suit  against 
him  for  libeling  his  character,  and  he  was  going 
to  kill  Stone,  and  all  that  sort  of  thing.  I  never 
advised  him  to  sue  Stone.  I  was  in  Court  this 
morning  when  Trigo  testified  that  Bancroft  and  I 
advised  him  to  get  counsel  to  sue  Stone.  I 
never  gave  him  any  such  advice.  I  never  ad 
vised  anybody  to  go  into  a  law  suit.  Trigo  told 
me  he  was  going  to  base  his  suit  against  Stone 
on  the  letters  Stone  had  written  impeaching  his 
veracity,  and  his  integrity,  and  his  character.  I 
think  I  showed  Trigo  one  letter  written  by  Stone 
that  was  addressed  to  me.  I  had  been  finding 
some  fault  with  him  about  the  conduct  of  his  busi 
ness,  if  I  remember  rightly,  and  I  showed  him  a 
letter  from  Mr.  Stone  finding  fault  with  him,  as 
sustaining  my  own  views.  He  must  have  ob 
tained  the  information  in  relation  to  the  remarks 
which  Stone  had  made  concerning  him  through 


153 

45 1  some  other  person  than  myself.  He  did  not  ob 
tain  it  through  me.  I  did  not  make  any  state 
ments  to  Trigo  in  relation  to  what  Stone  had  said 
of  him  further  than  to  exhibit  to  him  the  letter 
which  I  have  mentioned.  All  other  information 
which  he  had  in  relation  to  derogatory  statements 
made  concerning  him  by  Stone,  he  obtained 
through  some  other  source  than  myself.  When 
Trigo  seemed  to  exhibit  so  much  ill-feeling  towards 
Stone,  he  told  me  that  Stone  had  made  state- 

^^  ments  impeaching  his  honesty  and  veracity,  and 
that  he  had  treated  him  like  a  dog,  but  I  advised 
him  not  to  have  any  suit  with  Stone  ;  that  there 
was  nothing  in  it.  Mr.  Bancroft  never  instructed 
me~to  say  to  any  one  of  the  employees  of  the 
History  Company  that  Stone  had  no  right  there; 
he  never  instructed,  or  suggested  to  me  to  instruct 
any  of  the  employees  of  the  History  Company 
not  to  render  any  assistance  or  service  to 

AC -i  Stone.  Mr.  Stone  was  not  a  member  of  the 
Board  of  Directors  at  the  time  the  misunder 
standing  between  him  and  me,  of  which  he  has 
testified  took  place.  It  was  not  a  meeting  of 
stockholders,  it  was  a  meeting  of  the  Board  of 
Directors  of  the  History  Company,  and  there  was 
no  one  present  besides  Mr.  Stone  who  was  not  a 
member  of  the  board.  That  was  a  Director's 
meeting  for  the  transaction  of  business  of  the 


454  company.  Mr.  Stone  had  not  been  invited  to  go 
there  by  the  Board  of  Directors,  so  far  as  I  knew, 
as  I  think  he  had  no  right  there.  I  did  not  tell 
him,  in  the  month  of  May,  1892,  that  he  had  no 
right  in  the  History  Company's  office,  nor  in 
June,  1892,  nor  did  I  ever  tell  him  that  at  any 
time.  I  remember  a  little  episode  that  took 
place  one  day  in  the  History  Company  building, 
when  Stone  came  into  the  private  office  of  Mr. 
Bancroft.  Mr.  Bancroft  was  sitting  at  his  table 
in  his  private  office,  and  I  was  standing  near  him 
in  conversation  with  him  and  the  door  suddenly 
opened,  and  Mr.  Stone,  very  much  excited,  with 
his  hand  up,  entered  the  door,  that  is,  pushed  the 
door  open,  and  quite  loudly  said  :  "  Mr.  Bancroft, 
I  hold  you  responsible  for  the  movement  of  my 
desk."  He  spoke  in  that  way,  and  Mr.  Bancroft 
looked  up  quietly,  made  no  reply  to  him,  but 
asked  me  if  I  would  please  close  the  door,  and  I 

456  stepped  to  the  door  and  closed  it,  and  in  closing 
it,  I  pushed  Mr.  Stone  out  in  order  to  close  it. 
There  was  not  a  word  said  at  that  time,  except,  as 
near  as  I  can  remember,  what  I  have  just  stated. 
That  was  Mr.  Bancroft's  private  office.  Mr. 
Stone's  desk  was  not  in  there  and  never  had 
been. 

CROSS-EXAMINATION. 

That  was  the   private   room   of  Mr.  Bancroft, 


457  President  of  the  History  Company,  for  which  the 
corporation  was  paying  rent.     I  speak  of  them  as 
private  rooms  because  the  general   business  was 
not  done  there.     This  occurred  some  time  during 
the  forenoon,  in  business  hours.       I  do  not  know 
that    Mr.    Bancroft    occupied    any    room    as  his 
special  private  room.       I  explained  that  I  called 
these  private  rooms  in  that  the  general   business 
was  not  performed  there.     He  was  there  as  Pres 
ident  of  the  company,  and   held  those   rooms  as 
**     President   of  the   History   Company.       He   was 
there  at  work.     He  was  at  that  time  President  of 
the  Company,  and  those  rooms  were  occupied  by 
him  as  a  member  of  the  company.     That  was  the 
place  where  he  transacted  his  business  with  out 
siders,  or   with   officers    of  the  corporation   who 
might  have  business  with   him.      Mr.  Stone   did 
not  say  to  Bancroft  that  he  would  hold  him  re 
sponsible  for  the  removal  of  his  desk  out  of  his 
4  CQ  office.     His  proposition/ as  near  as  I  can  repeat, 
was  :   "  Mr.  Bancroft,  I  hold  you  responsible  for 
the  moving  of  my  desk."     I  do  not  attempt  to 
give  the  exact  words,  that  is  the  substance  of  it. 
Mr.  Bancroft  did  not  make  any  reply  to  him. 
He  asked  me  if  I  would   please   close   the   door. 
Stone  was  not  inside  the  room  at  that  time.     He 
held   the   door  in    his  hand.     I   closed  the  door. 
Stone  was  not  quite   in.      He   had   hold   of  the 


156 

460  door.  I  stepped  up  and  put  my  hand  on  the 
door,  and  shoved  the  door  together.  He  seem 
ingly  was  willing  it  should  be  shut,  and  he  went 
back  with  it.  That  was  the  end  of  the  transac 
tion.  If  I  said  in  my  direct  examination  that  I 
pushed  Mr.  Stone  out,  it  was  a  slip  of  the  tongue. 
I  closed  the  door,  and  the  idea  is,  he  went  with 
the  door.  The  door  shoved  in  his  direction  ;  it 
opened  into  the  office.  I  cannot  say  I  closed  the 
door  very  gently,  but  I  did  not  do  it  violently,  it 
did  not  require  violence  to  close  it.  When  Stone 
went  into  the  room,  Mr.  Bancroft  asksd  me  to 
please  close  the  door,  and  I  have  stated  to  you 
what  I  did,  and  that  was  the  substance  of  it.  I 
never  discharged  Stone  from  the  History  Com 
pany,  and  never  knew  of  his  being  discharged.  I 
understood  he  had  some  sort  of  a  contract  with 
Mr.  Bancroft,  but  I  knew  nothing  about  his  be 
ing  discharged  from  the  History  Company.  I 

462  knew  he  was  Vice-President,  and  I  knew  the 
Board  failed  to  re-elect  him,  and  I  was  elected 
Vice-President.  I  supposed  if  he  had  any  rights 
in  the  History  Company  the  law  would  protect 
him.  I  never  dismissed  him  or  knew  of  anybody 
else  dismissing  him.  I  think  it  was  in  May,  1892, 
that  he  was  not  re-elected  Vice-President.  I  do 
not  know  anything  about  his  being  in  the  employ 
of  the  History  Company  after  that  time.  I  said 


463  I  never  dismissed  him  nor  ever  heard  of  his  being 
dismissed.  This  episode  that  I  have  just  des 
cribed  occurred  after  I  was  elected  Vice -Presi 
dent,  but  I  cannot  fix  the  date.  I  should  say  it- 
occurred  some  months  after.  A  matter  of  three 
or  four  months.  Mr.  Stone  was  in  and  out  of  the 
building  during  that  time.  I  did  not  always  know 
what  he  was  doing,  but  he  did  not  seem  to  be  do 
ing  much.  I  was  Vice-President,  and  it  was  my 
duty  to  be  looking  after  the  work  of  the  company 
and  looking  after  the  employees,  and  I  did  this. 
I  knew  that  Stone  was  writing  some  letters,  and 
I  knew  he  was  transacting  some  business,  and  I 
knew  he  had  some  contract  with  H.  H.  Bancroft. 
I  knew  he  was  writing  letters  and  transacting 
some  business  for  the  corporation.  He  continued 
to  transact  business  in  that  manner  several 
months  after.  He  was  in  and  out  doing  a  little; 
I  do  not  know  exactly  how  many  months.  I 

45  c  think  I  came  back  some  time  in  June  or  July  and 
Mr.  Stone  was  there  then,  and  he  continued  there 
off  and  on.  Sometimes  I  would  see  him  there 
for  an  hour  or  two  in  the  day,  sometimes  at  dif 
ferent  times  in  the  days,  perhaps  for  a  month  or 
two  months,  perhaps  three  months  after  that 
time.  I  made  some  inquiry  and  tried  to  find  out 
what  he  was  doing  there.  I  knew  he  was  trans- 
actino-  business  for  the  corporation.  I  did  not 


466  discharge  him,  because,  as  I  understood  it,  he  had 
no  direct  connection  with  the  History  Company, 
except  through  some  contract  with  defendant,  and 
I  felt  that  whatever  rights  he  had  the  courts  and 
he  and  Mr.  Bancroft  would  settle  between  them 
selves.  That  was  the  reason  I  made  no  special 
inquiries  as  to  what  he  was  doing  about  there. 
After  the  election  on  May  20th  he  continued  as 
manager.  After  I  was  Vice-President  he  claimed 
to  be  manager.  A  letter  was  sent  to  Mr.  Derby 

J  A«r 

signed  by  him  as  manager.  Mr.  Derby  sent  me 
back  a  letter  that  he  had  signed  as  manager,  and 
I  knew  in  that  way  that  he  was  acting  or  pro 
ceeding  to  act  as  manager  right  along  during 
those  months.  I  never  attempted  to  discharge 
him  as  manager  for  the  reasons  I  have  given  you. 
After  my  return  from  Mexico,  I  commenced  an 
action  against  Mr.  Stone.  That  action  was  tried 
in  the  Superior  Court  of  the  City  and  County  of 
468  San  Francisco  before  a  jury.  I  do  not  think  I 
ever  did,  while  Mr.  Stone  was  Vice-President  of 
the  company;  apply  to  Bancroft  or  approach  him 
for  the  purpose  of  getting  him  to  depose  Stone 
and  putting  me  in  his  place.  I  never  made  any 
such  application.  Something  was  said  about  a 
change  of  officers  and  I  think  I  told  Mr.  Ban- 

o 

croft  in  a  letter  that  was  produced  once  that  I 
have  forgotten  about,  and  I  heard  read,  that  I 


469  would  be  willing  to  accept  the  position  of  Vice- 
President,  but  I  never  made  any  application  for 
the  office.  I  may  have  intimated  to  him  that  I 
would  be  glad  to  take  the  position  which  was 
then  occupied  by  Mr.  Stone,  if  it  was  vacant. 

[Witness  is  shown  a  letter  which  he  identifies 
as  being  in  his  handwriting,  and  the  signature  of 
which  he  identifies  as  his.  The  letter  was  offered 
in  evidence  by  plaintiff,  arid  was  asked  the  object 
of  it.  Plaintiff's  counsel  stated  the  object  is  to 
show  that  the  witness  made  such  an  application 
as  I  have  described  to  obtain  the  position  which 
was  then  occupied  by  Mr.  Stone,  that  he  sought 
to  displace  him  and  to  gain  the  place.] 

The  letter  was  objected  to  by  defendant  on  the 
ground  that  it  was  irrelevant  and  immaterial  and 
not  cross-examination. 

The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  duly  excepted. 
471      Exception  No.  33. 

Whereupon  the  letter  was  read  in  evidence,  as 
follows: 

"HOTEL  ITURBIDE,  MEXICO.      ) 
MEXICO  CITY,  February  13,  1892.  j 

DEAR  MK.  BANCROFT: 

I  desire  to  wish  yourself  and  family 
a  pleasant  and  safe  passage  home,  and  trust  that  the 
change  to  our  California  climate  may  build  Lucy  up  at 
once.  Regarding  the  business  here  I  will  do  my  best  to 


i6o 

472  8eH  school  books,  get  cash  wherever  it  is  possible,  when 
time  is  given,  will  get  the  shortest  time  possible.     Will 
work  C.  B.  for  all  it  is  worth.     Will  do  my  best  to  place 
B.  W.  in  colleges  and  seminaries;  will  be  on  the  lookout 
for  information  and  names   of  writers  and  books,  etc., 
that  can  be  had  without  cost  for  Gyp.     Will  get  notes  for 
school  books,  discount  them,  arrange  with  good  commis 
sion  house  to  send  us  the  money  as  soon  as  the  books  are 
received;  will  always  sell  the  best  book  possible,  but  in 
accordance  with  your  wishes,  will  have  such  books  made 
(in  price)  as  will  meet  the  demand.     It  is  my  intention 
to  get  all  over  the  Republic,  that  is,  to  such  points  as  we 
ought  to  go  to  where  don't  reach,  and  get  back  to 

473  San  Francisco  by  May  15,  '92.     For  1  wish,  if  agreeable 
to  you,  to  take  a  trip  to  Montana  and  get  back  here  in 
September  to  see  Diaz.     From  what  I   have  read  of  the 
correspondence  between  Mexico  and  the  History  Com 
pany,  in  S.  F.,  too  much  ink,  paper,  time  and  money  is 
expended  in  trifling  fault  finding,  and  telling  what  can 
be  done,  to  give  confidence  in  the  way  business  is  done; 
the  haste,  too,  with  which  property  was  disposed  of  also 
makes  me  tremble  for  the  condition  of  our  wives  and 
children  would  find  matters  in,  if  we  were  suddenly  taken 
to  Paradise;  so  if  you  will  quietly  arrange  to  have  Dor- 
land  and  Peterson  move  upstairs  and  attend  to  the  work 
now  attended  to  by  the  people  there,  and   thus  give  the 

474  Vice-President  a  chance  to  go  out  and  do  some  good  big 
work  for  the  company.     I  will  be  greatly  pleased;  he  is 
a  man  who  knows  how  the  work   should  be  done  and 
would,  no  doubt,  be  able  to  accomplish  a  great  deal,  and 
the  office  work  could  be  done  just  as  well,  to  say  the  least, 
as  it  is  now,  and  with  Tom  at  the  head  I  would  feel  per 
fectly  safe,  knowing  that  he  would  be   fair  and  honest, 
and  would  do  nothing  in  haste  or  wrong,  or  without  con 
sulting  the  interests  of  all.     Mrs.  Morrison  is  a  woman 
of  rare  sense,  education  and  tact,  she  is  deeply  interested 
in  all  that  concerns  her  husband  and  children,  and  can 
act  for  me.     She  has  the  most  profound  respect  for  your 


475  ability,  wisdom  and  fairness,  and  you  will  find  her  just  as 
valuable  a  person  to  consult  about  all  matters  in  which 
I  am  interested  as   I  would    be  if   personally  present. 
I  will  send  her  a  power  of  attorney  to  act  for  me.     My 
judgment  is  that  it  would  be  wise  to  keep  all  the  room  we 
now  have,  and   when  you   are  ready  to  do  so  move  the 
B.  C.    upstairs  and   arrange  to  divide  the  rent.     If  you 
should  come  to  the   conclusion  that  for  any  reason  you 
want  to  make  a  change  in  officers,  I  would  be  glad  to  see 
Tom   Borland   Secretary  and   Treasurer,  and  would   be 
glad  to  accept  V.  P.;  this,  I  understand,  to  be  in  full  ac 
cord  with  your   views.     In   all   things  I  talk  to  you    as 
plainly  as  if  I  was  thinking  aloud,  for  I  am  with  you  and 

476  yours  for  life,  and  all  our  business   must  be  absolutely 
fair,  open  and  just.     If  you  are  not   wiser  than  I  am  at 
many  points  it  would   indicate  that  your   years  of  won 
derful  work  had  not  ripened  a  mind  naturally  rich;  you 
are  wiser,  anjl  I  want  to  derive  benefit  personally  and  for 
the  business  from  the  large  experience  that  has  enabled 
you  to  accomplish  your  work,  hence  speak  to  me  in  the 
future  as  you  have  in  the  past,  freely. 

I  have  written  you  these  few  words  as  a  sort  of  a  good 
bye.     With  kindest  regards  to  your  most  estimable  wife 
and  children,  I  am,  as  ever  and  always, 
Your  friend, 

GEO.  H.  MORRISON." 

477 

RE-DIREOT  EXAMINATION. ' 

[Letter  shown  witness  and  identified  by  him  as 
written  by  plaintiff  to  him  under  date  of  Novem 
ber  22,  1892,  the  following  portion  of  which  is 
offered  in  evidence:] 

"  I  shall  move  out  of  the  large  room  at  the  end  of  the 
hall,  for  the  reason  that  the  saving  in  rent  is  over  $75. 
The  little  rooms  are  not  ready  for  us  to  move  into.  We 


l62 

478  may  want  the  large  office,  and  will  certainly  want  it  if 

we  publish  the  Encyclopedia.     Mr.  S has  been  to  see 

me  about  moving  the  school  department  down  stairs — 
It  would  be  better  for  us  to  try  and  rent  a  little  space  in 
this  office,  and  try  to  cut  down  expenses  in  that  way." 

I  never  told  Miss  Hayes  that  Mr.  Stone  was 
around  the  office  of  the  History  as  a  spy.  I 
never  made  any  statement  of  that  kind  to  any 
body.  I  do  not  remember  Trigo  having  any 
conversation  with  me  about  the  time  I  returned 
to  San  Francisco;  he  spoke  to  me  before  he 
parted  with  me  in  Mexico,  saying  he  would 
bring  a  suit  against  Stone,  and  I  advised  him  it 
was  a  very  foolish  thing  to  do;  there  was  nothing 
in  a  law  suit. 

RE-CROSS    EXAMINATION. 

I  do  not  know  what  was  in  my  mind  when  I 
wrote  that  letter  to  Mr.  Bancroft,  which  has  been 
offered  in  evidence.  I  said  I  never  talked  to  an 
4§o  employee  of  the  company  about  one  of  my  asso 
ciates  in  the  company.  I  was  writing  to  Mr. 
Bancroft  as  the  head  and  front  of  the  History 
Company.  He  was  the  President,  he  owned  70 
per  cent  of  the  stock  of  the  corporation.  He 
was  the  largest  stockholder  of  the  History  Com 
pany.  I  used  the  expression  he  was  the  head 
and  front  of  the  History  Company,  and  qualified 
the  expression  by  saying  he  was  the  President  of 


481  the  company.  He  was  the  head  of  the 
corporation,  he  was  the  president  of  it. 
When  I  used  the  expression  the  head  and 
front,  I  simply  wanted  to  convey  the  idea  that 
Mr.  Bancroft  was  President  of  the  company,  that 
is  why  I  wrote  that  letter  to  him.  Mr.  Bancroft 
framed  the  policy  of  the  company,  and  it  was  in 
that  sense  that  I  used  the  expression  "  head  and 
front ;"  that  is  the  best  explanation  I  can  give. 

He  framed  the  policy  of  it  to  a  very  great  extent. 
482 


H.  H.  BANCROFT 

was  called  as  a  witness  for  defendant,  and  after 
being  duly  sworn,  testified  as  follows: 

I  never,  in  January,  1892,  or  at  any  other  time, 
in  the  City  of  Mexico,  made  any  arrangement  or 
agreement,  with  Mr.  Morrison  and  Mr.  Trigo 
that  we  should  bring  suits  against  Stone.  I  think 
483  I  was  in  Europe  when  the  plaintiff  first  came  to 
the  house  of  A.  L.  Bancroft  &  Coinpany.  I 
came  back  in  1868  or  1869.  The  firm  was  then 
H.  H.  Bancroft  &  Company,  and  was  continued 
under  that  name  until  we  moved  on  Market 
Street  in  1869,  and  then  it  was  changed  to  A.  L. 
Bancroft  &  Company,  and  continued  to  do  busi 
ness  under  that  name  until  1886,  when  it  was 
burned  out.  When  we  moved  to  Market  Street, 


164 

484  Mr.  Stone  was  employed  by  A.  L.  Bancroft  & 
Company.  He  was  there  in  two  or  three  capaci 
ties.  He  had  charge  of  the  wholesale  department 
at  one  time,  and  had  charge  *  of  the  subscription 
business  at  one  time,  I  cannot  remember  exactly 
the  dates,  they  were  in  paint  of  order.  I  think 
it  was  in  1882  that  he  began  to  have  anything 
to  do  with  the  Bancroft's  Works  Department  of 
A.  L.  Bancroft  &  Company.  He  had  charge  of 
the  sale  of  those  books,  and  continued  to  act  in 

""  5  that  capacity  for  A.  L.  Bancroft  &  Company 
until  the  History  Company  was  formed,  and  after 
that  he  was  manager  of  the  company.  The  prop 
erty  referred  to  in  the  agreement  set  forth  in  the 
plaintiff's  complaint  consisted  of  outstanding  ac 
counts  for  about  from  $240,000  to  $250,000  I  think 
some  seven  thousand,  and  two  or  three  hundred 
orders  for  the  Histories,  which  had  been  taken  at 
a  cost  of  from  $25  to  $75  an  order,  about  half  of 

486  ^  being  delivered.  Then  there  were  plates  and 
stock  of  the  histories,  and  altogether  it  figured  up 
fully  $500,000.  The  capital  stock  of  the  History 
Company  was  $500,000,  and, we  felt  we  had  an 
equivalent  to  it  in  every  respect.  Mr.  Stone  was 
one  of  the  incorporators  of  that  company;  he 
never  paid  in  a  cent;  not  a  dollar  from  first  to  last. 
I  was  the  owner  of  all  that'property  at  the  time  the 
agreement  was  made,  or  shortly  afterwards,  hav- 


487  ing  purchased  my  brother's  interest  and  paid  for 
it  with  my  own  money,  and  I  gave  him  (Stone) 
an  undivided  one-tenth  interest  in  that  property, 
without  the  payment  of  anything  to  me.  After 
the  formation  of  the  History  Company,  I  trans 
ferred  to  it  the  entire  property  mentioned  in  that 
agreement,  all  the  property  of  the  Bancroft's 
Works  Department,  which  went  to  make  up  the 
History  Company — the  capital.  That  business 
had  been  carried  on  for  some  years  by  A.  L.  Ban 
croft  &  Company  under  the  title  of  the  Bancroft 
Works  Department.  The  transfer  which  I  made 
to  the  History  Company  under  this  agreement, 
included  the  good-will  of  that  business,  whatever 
it  might  be  worth.  Leading  up  to  that  agree 
ment,  there  was  a  general  understanding  between 
Mr.  Stone  and  me  as  to  what  services  he  was  to 
perform  in  this  new  enterprise,  and  what  services 
I  was  to  perform.  We  consummated  the  arrange- 

,gg  ment,  and  the  business  was  thereafter  conducted 
under  the  title  of  the  History  Company.  I  told 
him  I  thought  the  business  could  stand  a  salary 
of  $350  per  month,  and  that  was  given  him,  and 
after  I  gave  him  the  ten  per  cent,  I  gave  him  an 
additional  five  per  cent  more  with  a  view  of 
attaching  him  to  the  business  and  to  make  him 
loyal  and  faithful,  and  able  to  carry  out  the  busi 
ness  to  its  fullest  extent.  Both  Stone  and  I  were 


1 66 

490  incorporators  of  the  History  Company,  and  signed 
the  articles  of  incorporation,  and  both  of  us  par 
ticipated    in    the    organization   of    the   company. 
After   the  formation   of  the   corporation,  all  the 
property  mentioned  in  this  agreement  was  turned 
over  to  it.     I  never,  from  the  time  that  agreement 
was  made,  down   to  the  date  of  the  commence 
ment  of  this   suit,  paid   Stone  any   salary,  and  he 
never  demanded  any  salary  from  me.     The  salary 
which  was  paid  to  him  was  charged  on  the  books 
49 x   of  the  History  Company,  but  was  never  charged 
to    my  personal  account.     Stone's    salary,    with 
other  expenses,  was  deducted  from  moneys  real 
ized  by  the   company  before  any   profits   or  divi 
dends  were  paid  or  declared.     I  think  they  kept 
a  salary  account  and  credited  the  money  to  that 
account,  and    then   charged  to  the  expenses;    it 
was  some  such  way  as  that.     As  large  dividends 
were  paid  by  the  History  Company,  the  property 
A Q2  of  the  corporation  decreased  in  value  very  rapidly. 
The    property    of    the    company    consisted    very 
largely  of  orders  which  had  been  taken  for  Ban 
croft's  Works,  and  as   money  was  paid  on   those 
orders,  the  debts  of  the  company  were   paid  and 
the  surplus  divided  from  time  to  time,  so  that  as 
those   moneys  were  paid  in,  dividends  were  de 
clared,  and   we   were    constantly  decreasing   the 
value    of  the    property    of  the   corporation;    we 


i67 

493  were,  in  fact,  dividing  the  capital  stock.  The 
money  I  put  in  was  paid  out  in  that  way;  the  busi 
ness  never  made  a  dollar,  and  it  is  over  $160,000 
behind  to-day.  In  May,  1892,  there  were  very 
few  outstanding  accounts  left  to  collect  and  money 
came  in  very  slowly  under  the  management;  for 
a  year  or  two  previous  to  that,  all  had  been  col 
lected  in  that  could  be,  and  nothing  was  done  to 
build  up  the  business.  There  was  no  new  busi 
ness  added,  and  no  attempt  on  the  part  of  Mr. 
Stone  to  increase  or  build  up  the  business,  and 
the  consequence  was  that  before  he  went  out,  or 
up  to  that  time,  it  was  very  much  reduced,  and 
the  circumstances  attending  his  going  out,  and 
the  influence  he  brought  to  bear  against  the  busi 
ness,  helped  still  further  to  wreck  it,  until  it  is 
pretty  well  gone  in.  As  a  matter  of  fact,  we 
made  very  few  sales  of  the  histories  after  the  1st 
of  January,  1892,  although  the  market  was  just 

40 s  as  o°0(l  then  as — I  won't  say  as  it  was  before — 
still  there  was  a  good  field  for  business,  but  Stone 
stopped  trying  to  sell  the  histories;  he  gave  up 
the  thing  altogether,  and  only  tried  to  collect  in 
this  money  and  divide  it,  so  that  practically  the 
business  of  the  History  Company  about  May, 
1892,  simply  consisted  in  collecting  in  outstand 
ing  accounts,  and  about  all  those  accounts  that 
could  have  been  collected,  had  been  collected  at 


1 68 

496  that  time.  There  was  nothing  to  speak  of  after 
that  time  from  which  to  make  a  declaration  of 
dividends;  there  was  nothing  except  sufficient  to 
meet  our  expenses  and  pay  our  debts.  In  May, 
1892,  Mr.  Stone  was  doing  nothing  whatever  ex 
cept  to  collect  in  money  and  divide  it;  there  was 
no  new  enterprises  being  pushed  forward;  it  was 
the  money  which  I  had  put  in  that  we  were  get 
ting  back,  and  he  was  getting  his  15  per  cent  of 
that  and  $350  per  month.  From  the  interest 
L"'  which  I  presented  to  him,  he  received  in  divi 
dends  between  $60,000  and  $70,000,  in  addition 
to  obtaining  $350  per  month,  and  I  got  no  com 
pensation  at  all.  Prior  to  May,  1892,  I  had  a 
great  many  conversations  with  Mr.  Stone.  I 
was  trying  to  get  him  to  do  something  to  make 
more  money  or  to  build  up  the  business  so  that 
we  could  have  something  left  after  the  histories 
were  sold  and  the  money  collected.  The  expenses 

408  were  almost  as  heavy  as  they  ever  were,  and 
nothing  was  coining  back  except  in  the  way 
of  collections,  and  I  saw  clearly  that  the  whole 
thing  would  fall  upon  me  to  put  up  a  lot  more 
money  for  him  to  divide,  and  I  urged  him  to 
reduce  expenses  and  to  make  some  new  business; 
he  had  always  claimed  that  he  was  a  man  of 
great  ability,  and  could  build  up  a  business,  so 
that  we  could  have  something  to  go  upon  after 


169 

499  the  history  was  sold  and  delivered  and  the  money 
collected,  but  I  never  could  induce  him  to  do  any 
thing  except  to  collect  in  this  money  and  divide 
it.      I  had  a  conversation  with  him  in  May,  1892. 
I  went  to  him  to  his  desk,  and  said  to  him:  "What 
is  the  matter,  Stone?     Mr.  Dorland  says  you  are 
going  to  bring  suit  against  the  History  Company, 
or  against  me,  and  break  up  this  business."     He 
said:   "I  won't  talk  to  you."     "Well,"  I  said,  "if 
there  is  anything  that  I  have  done  to  wrong  or 
offend  you  or  displease  you,  it  is  not  necessary  to 
go  to  law,  I  ani  ready  to  make  everything  right, 
I  am  very  glad  to  do  it;  I  don't  want  any  trouble, 
and  tell  me  what  it  is,  and  let  us  fix  it  up   like 
men    and  not  talk  about  going  to  law."     He  said: 
"I  will  talk  to  my  wife  first,  and  my  lawyer  next, 
and  you  last."     I  said:  "What  is  there  to  talk 
about?    What  do  you  want  to  talk  to  a  lawyer 
at  all  for  ?     You  know,  Stone,  I  have  been  very 
cOi  liberal  with  you.     I  gave  you  first  10  per  cent  in 
the  business,  and  5  per  cent   more,  and   when  I 
gave  you    the   second    5    per    cent,    your    voice 
choked  up  in  your  gratitude  to  me  for  that  gift." 
I  said:   "  Where  is  your  gratitude   now  '(     What 
have  I  done  that  you  propose  to  bring  suit  against 
me  and  break  up  the  business."     His  reply  was: 
"  I  will  talk  to  my  wife  and  my  lawyer,  and  you 
last."     I   said:   "  Mr.   Stone,  if  there    is  any  one 


iyo 

502  that  has  occasion  to  bring  a  suit,  it  is  for  me  to 
do  it  rather  than  for  you.  You  know  you  have 
broken  faith  with  me  in  a  dozen  different  ways. 
You  have  not  been  loyal  and  true  to  the  business; 
you  have  not  built  up  a  business  as  you  promised; 
you  have  not  relieved  me  from  the  labor  and 
work  in  this  business  that  I  wanted  and  expected 
to  be  free  from.  In  no  particular  have  you  car 
ried  out  your  agreement  with  me,  or  your  good 
faith  with  me."  His  reply  was:  "  I  will  talk  to 

?  my  wife  first,  my  lawyer  next  and  to  you  last." 
I  said  a  good  deal  more  and  went  over  the  ground 
pretty  thoroughly,  and  that  is  all  the  satisfaction 
I  could  get.  That  is  all  the  conversation  I  can 
readily  call  to  mind.  I  suppose  I  could  think  of 
more,  but  that  was  what  I  said.  This  was  about 
the  time  that  Mr.  Morrison  was  elected  Vice- 
President.  I  think  he  was  elected  after  that.  I 
said  to  him:  "  Mr.  Dorland  told  me  that  you  were 

504  gomg  to  bring  suit  against  me,  and  break  up  the 
business."  He  did  not  dissent  from  that,  but  said 
he  would  see  his  lawyer  and  then  talk  with  me. 
I  never  had  any  conversation  with  Stone  from 
that  day  to  this  that  amounted  to  anything.  I 
never  had  any  conversation  with  him  from  May, 
1892,  up  to  June,  1893,  to  speak  of.  I  saw  him 
around  the  office  of  the  History  Company  after 
that  time.  I  never  in  my  life  threatened  to  beg- 


505  gar  any  man,  let  alone  a  woman  and  children,  it 
is  not  possible,  it  is  untrue.  I  never  said  to  Mr. 
Stone  or  any  other  man  or  woman  or  child,  or 
never  thought  it  in  my  heart,  nor  ever  could  do 
it  if  I  had.  I  never  swore  at  Stone  in  my  life;  I 
never  had  any  violent  controversy  with  him  ex 
cept  on  two  occasions  when  he  forced  his  way  into 
my  room,  and  rendered  himself  odious  where  he 
had  no  business  to  be.  I  was  present  at  the  time 
of  the  episode  that  took  place  in  the  director's 
room  of  the  History  Company.  Mr.  Stone  was 
not  a  member  of  that  board.  At  that  time  we 
were  holding  a  director's  meeting  and  levying  an 
assessment.  No  one  had  invited  Mr.  Stone  to 
come  into  the  room,  on  the  contrary,  he  had  been 
hanging  around  the  room  for  some  hours,  and 

O         O  ' 

slipped  in  when  he  found  a  director's  meeting  was 
being  held.  I  was  there  at  the  time  he  claims  to 
have  been  pushed  out  of  the  room  by  Colonel 
cO7  Morrison.  That  room  was  my  office  and  adjoined 
the  rooms  where  the  director's  meetings  were  held. 
I  had  not  invited  Mr.  Stone  to  come  into  the 
room.  When  he  came  in,  I  was  sitting  at  the 
desk,  and  Morrison  was  standing  near  the  desk, 
and  we  were  talking,  he  was  between  the  desk 
and  the  door,  and  the  door  was  shut.  Mr.  Stone 
opened  the  door  and  put  in  his  head,  and  shook 
his  fist  and  said,  "  I  will  hold  you  personally 


172 

508  responsible  for  my  desk  being  moved."  I  had  not 
touched  his  desk.  He  was  violent  and  angry  in 
his  manner.  I  did  not  reply,  but  turned  to 
Colonel  Morrison  and  asked  him  if  he  would 
please  shut  the  door.  I  did  not  say  anything  to 
Stone  at  that  time,  and  that  is  all  I  said  to  any 
body  there.  I  never  told  Mr.  Dorland  or  any 
one  else,  that  Stone  had  no  right  around  the  office 
of  the  History  Company,  nor  did  I  ever  tell  Dor- 
land  to  tell  Stone  that.  His  rights  were  recog 
nized  there  by  everybody  throughout,  and  never 
interfered  with  in  the  slightest  degree.  I  never 
discharged  or  dismissed  Stone  from  the  service  of 
the  History  Company;  that  question  never  came 
up.  I  have  an  indistinct  recollection  of  passing 
by  where  Stone  was  sitting  at  one  time,  and  the 
carpenters  were  at  work  and  they  had  some  lum 
ber  or  something;  I  wanted  to  pass  along  there, 
and  1  think  I  stopped  one  of  them  and  said: 

clo  "  Take  hold  of  that;  we  will  move  this  over  a 
little  ways."  Stone  was  sitting  at  the  desk;  I 
don't  think  it  was  moved  over  six  inches,  and 
very  quietly  without  disturbing  him  or  his  papers, 
or  anything  on  it  with  any  view  whatever  of 
interfering  with  his  work;  and  as  a  matter  of  fact, 
it  did  not.  He  hitched  his  chair  up  and  went  on 
with  what  he  was  doing;  that  is  all  there  was 
to  that.  That  is  the  only  time  I  touched  his 


173 

desk  while  he  was  at  work  at  it;  the  carpenters 
were  at  work  at  that  time  and  wanted  a  little  more 
room  to  pass  where  he  was  sitting;  the  end  of  his 
desk  came  up  to  where  their  lumber  was.  I 
never  kicked  Stone's  waste-basket  over;  the 
basket  he  used  belonged  to  the  History  Company, 
and  it  would  be  very  poor  taste  of  me  to  kick  the 
History  Company's  basket.  I  never,  to  my 
knowledge,  poured  or  scattered  any  ink  over  the 
desk  occupied  by  Stone.  If  any  ink  got  on  his 
desk  through  me,  I  never  knew  it,  and  if  it  did 
it  was  an  accident,  and  as  I  say  the  desk  did  not 
belong  to  him  but  to  the  History  Company,  and 
it  would  be  very  poor  satisfaction  to  me  to  turn 
the  inkstand  over  on  it  and  daub  it  with  ink. 
The  desk  belonged  to  the  History  Company  and 
not  to  him,  and  if  I  had  daubed  it  all  over  with 
ink,  it  would  not  have  spited  him.  I  am  inclined 
to  think  that  I  did  tell  somebody  to  take  the 
!-!•}  casters  off  Stone's  desk.  When  he  would  come 
down  to  wherever  his  desk  was  in  the  morning  or 
at  noon,  he  would  take  the  desk  and  shove  it  from 
one  end  of  the  room  to  the  other,  making  a  great 
racket.  He  did  that  over  and  over  again.  He 
was  trying  to  make  things  as  disagreeable  as  he 
could.  He  was  going  around  whistling  and  hol 
lering  to  this  one  and  that  one;  that  seemed  a 
part  of  his  performance.  I  think  I  told  somebody 


-74 

514  it  would  be  just  as  well  to  have  those  casters  all 
taken  off  that  desk,  it  would  not  make  quite  as 
much  noise.  I  have  an  indistinct  recollection  of 
that.  I  would  not  swear  I  did  it  or  said  that; 
that  is  my  best  recollection  of  it,  but  it  was  done 
through  self-protection,  and  it  did  not  affect  his 
doing  his  work,  and  building  up  the  business  of 
the  History  Company  if  he  wanted  to,  but  to 
stop  the  racket  that  he  made.  I  never  ordered 
his  desk  to  be  placed  in  a  position  where  he  could 
not  work;  I  had  nothing  to  do  with  placing  his 
desk;  the  men  were  shoving  it  around  the  same 
as  any  other  desk;  the  desk  which  he  occupied 
was  an  ordinary  sized  one;  he  managed  to  shove 
it  around  pretty  well  when  it  was  on  castors. 
The  desk  was  not  so  large  or  heavy  that  if  put 
up  close  to  the  wall,  or  so  close  to  any  other  ob 
ject,  that  a  chair  could  not  be  put  behind  it  or 
moved  out,  and  a  chair  lifted  behind  it.  He  was 
never  restricted  as  to  where  he  should  put  his 
desk;  he  had  the  whole  floor  of  the  room,  and 
always  had  some  one  there  to  help  him.  It  was 
not  my  business  to  go  and  look  after  the  desk;  he 
was  manager  there  and  he  looked  after  the  room; 
he  was  not  interfered  with  in  the  slightest  degree 
in  anything;  he  had  the  whole  room  and  type 
writers  to  himself  in  that  room,  and  was  not  in 
terfered  with  in  the  slightest  degree  by  anybody 


517  He  was  the  manager,  and  it  was  not  my  place  to 
tell  him  what  to  do.     I   never  told    anybody  to 
throw  any  obstacle  in  the  way  of  Stone,  or  to  put 
his  desk  in   any  particular   place.     I  never  gave 
any  order  for  the   removal   of   his  desk;  on    the 
contrary,  I  came  down  one  morning  and  found  it 
gone;  somebody  had  moved  it  out  of  the  room,  I 
do  not  know  where,  and  I  said  that  it  had  better 
be  put  back.     I  never  considered  Stone  discharged, 
or  that  his  duties  were  interfered  witli  in  any  de 
gree.     I  had  not  been  accustomed  to  direct  him 
in  any  particular.     I  had  been  away  months  at  a 
time,  and  when  I  was  there  I  did  not  direct  him; 
he    had   full    scope    in    the    management    of  the 
business.     It  was  none  of  my  business  to  see  that 
his  desk  was  placed  here  or  there,  or  that  he  had 
a  typewriter,  or  had  not,  or  all  the  rest  of  what 
has  been  set  forth  here.     From  November,  1892, 
to  March,  1893,  I  think  I   was  residing   in  San 
Francisco,  and    my  impression  is   that  I  was  in 
attendance  at  the  office  of  the  History  Company 
during  that   time.       Stone  never   spoke  to   me 
about  his  desk  at  any  time  after  the  1st  of  No 
vember,  1892.     I   had   not  touched  the  desk  at 
the  time  he  came  and  threatened  to  hold  me  re 
sponsible;  I  did  not  know  anything  about  it.     He 
never  came  to   me   and  asked  that  his  desk   be 
placed    in    any    particular    position.       He    never 


1 76 

520  came  to  me  and  stated  that  his  desk  had  been 
placed  in  a  position  where  it  was  in  any  way  in 
convenient  for  him  to  work.  He  would  not  think 
of  such  a  thing  as  that,  because  he  could  place  it 
where  he  wanted  to.  No  complaint  ever  came  to 
me  through  any  source  that  Stone's  desk  had 
been  placed  in  a  position  where  it  was  inconven 
ient  for  him  to  work.  No  request  ever  came  to 
me  through  any  other  source  purporting  to  come 
from  him,  that  his  desk  had  been  placed  in  any 

•521  other  position  than  that  which  it  occupied.  No 
one  ever  told  me  that  Stone  complained  that  his 
desk  had  been  placed  in  a  position  where  it  was 
impossible  for  him  to  work.  I  never  told  Trigo 
or  Morrison,  in  the  City  of  Mexico,  or  any  other 
place  that  I  proposed  to  oust  Stone  from  the 
History  Company.  I  never  wanted  to  oust  him; 
I  wanted  him  to  stay  there;  I  never  told  Trigo 
anything  of  that  kind.  I  never  made  any  such 
statement  to  Morrison  in  Trigo's  presence.  There 
was  never  any  agreement  between  me  and  Stone 
that  Stone  should  be  Vice-President  of  the  His 
tory  Company  for  any  specified  time.  I  never 
told  Mr.  Dorland  not  to  permit  Stone  to  do  any 
work  in  the  History  Company.  I  never  offered 
to  pay  any  expenses  for  any  litigation  which 
Trigo  might  institute  against  Stone. 


177 

523  CROSS  EXAMINATION. 

I  think  I  came  back  from  Mexico  in  February, 
1892.  I  left  here,  I  think,  some  time  in  Septem 
ber,  1891,  and  reached  there  early  in  October, 
and  got  back  the  latter  part  of  February  or  the 
first  of  March,  1892.  I  went  to  the  City  of 
Mexico;  I  think  it  was  in  February  that  I  left 
there;  I  stopped  at  San  Diego  for  awhile  on  my 
return;  I  think  I  was  there  a  month  or  two.  I 

think  it  was  in  April  that  I  reached  San  Fran- 
524 

cisco;  I  think  I  was  here  a  month  or  two  before 

the  time  when  Stone  threatened  to  sue  me.  I  think 
it  was  in  May  that  he  made  that  threat.  I  cannot 
tell  exactly  what  time  in  May,  it  seems  to  me  it  was 
about  the  10th  of  the  month,  or  along  there.  I  do 
not  remember  what  time  I  commenced  suit  against 
Stone;  I  think  it  was  the  same  day  I  had  that 
interview  with  him.  I  know  Mr.  Morrison  com 
menced  a  suit  against  Stone  two  or  three  months 
525  after  he  returned  from  Mexico,  and  I  think  it  was 
about  a  month  after  I  came  up  from  San  Diego 
that  I  commenced  a  suit  against  Stone.  After  he 
came  back  from  Mexico,  I  observed  Trigo  look 
ing  over  the  letters  of  the  History  Company  off 
and  on  for  a  month.  He  was  going  to  kill  Stone 
and  going  to  bring  suit  against  him. 

Q.  Who  placed  those  letters  at  the  disposal 
of  Mr.  Trigo? 


1 78 

526  A.  They  were  at  the  disposal  of  anybody  in 
the  History  Company.  He  was  looking  for  some 
thing  to  bring  suit  against  Stone,  so  he  told  me. 
I  thought  that  in  writing  these  letters  that  per 
haps  I  had  rendered  Trigo  injustice  in  some  re 
spects,  although  I  considered  I  spoke  very  mildly 
about  him,  and  I  did  not  want  any  enmity  or  ill- 
feeling  between  Stone  and  Trigo.  I  wanted  them 
to  understand  one  another.  The  letters  I  wrote 
Stone  in  answer  to  his  letters  were  to  quiet  him 
down.  I  did  not  attempt  in  any  way  to  soothe  or 
prevent  Trigo  from  bringing  a  suit  against  Stone. 
I  did  not  do  anything  about  it.  I  did  not  incite 
Tritjo  to  sue  Stone  or  Stone  to  sue  me.  In  1886 

O  » 

I  transferred  $500,000  of  property  to  the  History 
Company,  and  I  gave  one-tenth  of  all  the  prop 
erty  to  Stone,  and  afterwards  5  per  cent  addi 
tional.  The  5  per  cent  was  given  to  him  some 
time  after  the  10  per  cent.  I  gave  him  10  per 
cent  of  all  the  property  without  any  consideration 
whatever  further  than  his  promise  to  be  faithful 
to  the  business.  He  had  done  nothing  before 
that  except  what  he  had  been  well  paid  for.  I 
o-ave  him  about  $50,000,  and  u;ave  it  to  him  out 

o 

and  out.  I  never  received  a  dime  in  return — 
$54,000  I  think  it  was,  and  this  is  a  specimen  of 
what  I  got  for  it.  I  never  did  so  foolish  a  tiling 
as  that  before  or  since  in  my  life.  That  was  the 


179 

529  worst  thing  I  ever  did,  so  far  as  money  was  con 
cerned.  I  had  in  mind  some  services  Stone  had 
performed,  but  he  was  paid  for  those  services 
over  and  over.  The  recital  in  the  agreement  that 
in  consideration  of  the  valuable  services  done  by 
the  said  Stone  in  conducting  the  publication  and 
sale  of  the  historical  works  of  said  Bancroft— 
the  said  Bancroft  hereby  sells  and  assigns  to  said 
Stone,  one-tenth  interest  in  said  History  Com 
pany,  paper,  stock,  etc.,"  was  in  one  sense  a  fact, 
in  the  sense  in  which  it  was  intended;  it  was  all 
the  consideration  that  was  put  in  that  agreement 
which  I  signed,  and  what  I  stated  there  was  the 
fact,  but  it  was  not  meant  there  that  I  owed  him 
anything  further  for  what  he  had  done;  but,  as 
he  had  been  at  work  on  the  history,  and  had 
done  very  well,  in  consideration  of  this  fact,  and 
the  further  promise  of  what  he  would  do,  I  gave 
him  this  out  and  out,  but  I  was  under  no  obliga- 
tions,  and  no  obligation  is  intended  to  be  implied 
in  the  written  transfer.  I  did  not  mean  this  as 
an  equivalent  consideration  or  payment.  I  did 
mean  what  was  recited  in  that  agreement,  with 
this  explanation  that  it  had  no  reference  to  a 
technical  consideration,  but  that  he  had  worked 
on  the  history  and  had  been  fully  paid  for  it,  and 
in  consideration  of  that  fact,  I  would  give  him 
out  and  out  this  property,  provided  he  would  be 


i8o 

532  true  and  faithful   to  me  to  the   end,  as  he  prom 
ised.     The  services   which   he  had   rendered,  re 
ferred  to  in  the  agreement,  had  been  amply  paid 
for,  and  I  wanted  to  give  him  $50,000  for  what 
he  was  going  to  do,  for  what  he  promised  to  do; 
it  was  rny  purpose   in  this  transaction,  knowing 
that  Stone  had  been  fully  paid  for  all  that  he  had 
done  up  to  that  time,  to   give  him  the    sum  of 
$50,000,  and  I  knew   I  was    doing  so — making 
him    a    present  of  it.     I  am  not  frequently    in- 

533  Spired  with  thoughts  of  that  kind.     Stone  had 
gone  into  this  history  business  as  early  as  1883, 
and  continued   in   it  for  a  period   of  four  years. 
He  had  managed  the  business.     To  some  extent, 
it  was  the  result  of  his  labor  that  the  History 
Company  had  reached  the  degree  of  prosperity 
in  which  it  was  at  that  time,  but  it  was  not  pros 
perous  at  that  time.      We  had    $240,000    that 
was  due,  but  there  was  not  much  money  coming 
in  at  that  time;  at  the  end  of  four  years  there  was 
that  much  money  coming  in.     That  money  came 
out  of  my  pocket.     I  went  into  the  History  Com 
pany.     I  paid  the  money  for  the  manufacture  of 
the  books  and  getting   orders,  every  dollar  came 
out  of  me  or  out  of  the  A.  L.  Bancroft  Com 
pany    and    stood   on   the    books  of  the   History 
Company.     I  did   not   say  that  the   condition,  I 
.said  the  prosperity  of  the  History  Company  was 


535  due  to  the  management  of  Mr.  Stone.  Its  con 
dition  was  not  due  entirely  to  the  management 
of  Mr.  Stone;  no  one  else  managed  it  but  him; 
but  its  condition  was  due  to  other  men  also;  it 
was  due  to  some  extent  to  me.  I  worked  there 
right  along.  Stone  managed  the  details  of  the 
business,  but  I  directed  the  business  generally  or 
assisted  in  the  direction  of  it.  During  that  time 
hundreds  of  thousands  of  dollars  were  taken  out 
of  the  A.  L.  Bancroft  Company,  and  put  in  the 

**  selling  of  this  History;  some  portion  of  it  has 
come  back. 

(Witness  identifies  a  letter  as  having  been 
written  by  him,  a  portion  of  which  is  read  as 
follows:) 

"  February  4,  1884. 
Dear  Stone: 

The  History  business  is  certainly  in  mag 
nificent  shape,  and  it  is  to  you  and  no  one  else  that  it  is 
indebted  for  being  so." 

537  Witness  continuing:  I  wrote  that  letter.  The 
boys  require  some  patting  on  the  back  occasion- 
ally. 

Q.  Do  you  pat  them  on  the  back  with  what 
is  not  true? 

A.  To  some  extent  it  is  true.  I  meant  a 
great  deal  of  it.  I  do  not  mean  to  say  that  the 
letter  was  not  true  which  I  wrote  to  Stone. 
Sometimes  he  is  a  good  deal  of  a  boy.  I  thought 


182 

538  I  could  get  more  work  out  of  him  by  patting  him 
on  the  back.  I  did  not  propose  to  deceive  him 
to  get  more  work  out  of  him  than  he  was  doing. 
I  was  not  deceiving  him  at  all.  To  a  certain  ex 
tent  the  statement  contained  in  the  letter  was  a 
fact. 

(Witness  identifies  another  letter  as  having 
been  written  by  him,  which  is  offered  in  evidence 
and  read  as  follows:) 

"Jan.  27th,  188S. 
Dear  Stone: 

I  feel  it  is  due  to  you  for  me  to  say  on  this 
first  dividend  day,  that  you  have  stood  by  the  History 
Company  nobly  from  first  to  last,  and  that  it  is  through 
your  steadfastness  of  purpose  in  accomplishing  a  most 
difficult  and  harrowing  piece  of  work  that  success  has 
finally  come.  I  hope  for  your  sake  as  well  as  my  own, 
that,  the  dividends  may  continue  right  along,  whiln  at  the 
same  time,  the  value  of  the  plant  and  property  is  made  all 
the  time  to  increase.  A  continuance  of  the  same  able 
management  is  sure  to  bring  about  this  result.  For  my 
self,  Iwill  say,  once  more  and  once  for  all.  that  though  I 
may  have  spoken  words  which  have  caused  you  annoyance 
and  have  differed  from  you  in  opinion  once  or  twice,  on 
the  whole  we  have  been  remarkably  of  one  mind,  I  think; 
I  have  never  entertained  for  one  moment  in  my  heart  of 
hearts,  any  but  the  truest,  kindest  and  most  loyal  senti 
ments  towards  you. 

Very  sincerely, 

H.  H.  BANCROFT." 

At  the  time  Stone  and  I  made  this  agreement, 
he  was  in  the  employ  of  A.  L.  Bancroft  &  Com 
pany,  receiving  a  salary,  I  think  of  $400  per 


'S3 

541  month,  but  I  am  not  sure   whether  it  was  that 
amount  or  not;  it  was  not  necessarily  to   be  in 
creased  to  $450  or  $500  the  next  year.     I  did  not 
promise  it  to  him.     I  am  sure  of  that. 

(A  letter  is  shown  witness  which  is  identified 
as  having  been  written  by  him,  and  is  offered  in 
evidence  and  read  as  follows  :) 

"Sept.  3rd,  1885. 

Dear  Stone: 

I  did  not  see  last  month's  account  until 

542  yesterday,  when  I  noticed  that  you  drew  only  $350.     If  I 
remember  rightly  this  w^.s  the   amount  you  drew  last 
year,  ending  Jane  30th,   1885,  and  as  I  understood,  it 
has  been  settled  that  you  were  to  have  $400  next  year, 
that  is  from  July,  '85  to  July,  '86,  $450  from  July,  1886, 
te  July,  1887,  and  then  $500  so  please  draw  accordingly. 
Enclosed  is  a  letter  to  Ora  Oak,  which,  if  it  meets  with 
your  approval,  please  forward. 

H.  H.  B." 

[Marked  "Plaintiff's  Exhibit  9."] 
That  letter  shows  that  it  is  settled.  That  was 
(-43  talked  over  between  Stone  and  myself;  I  was 
satisfied  for  him  to  receive  that  amount,  so  far  as 
I  was  concerned,  but  the  matter  had  never  been 
submitted  to  or  determined  by  A.  L.  Bancroft 
&  Company,  which  was  a  corporation.  It  never 
had  come  up  before  the  Board  of  Directors;  it 
had  never  been  passed  upon  by  A.  L.  Bancroft  & 
Company.  So  far  as  I  was  individually  concerned 
I  was  satisfied  with  that  amount,  but  it  was  no 


544  expression  of  anything,  because  it  was  in  a 
tangled  shape,  and  nothing  he  could  trade  on.  I 
say  that  so  far  as  I  was  concerned,  it  was  settled 
that  I  was  willing  to  do  that.  I  did  not  know 
I  could  do  that  when  I  wrote  the  letter,  not  by 
myself,  it  required  the  Board  of  Directors  of  the 
corporation  to  confirm  it.  I  could  not  entirely 
have  his  salary  fixed  at  that  figure  by  myself;  I 
did  not  know  that  I  could  have  it  fixed  at  that 
when  1  wrote  the  letter.  As  I  have  explained, 

'  so  far  as  I  was  concerned,  it  was  satisfactory  to 
me  but  it  had  to  be  confirmed  by  the  company. 
It  was  settled  between  him  and  me,  provided 
everything  was  satisfactory ;  that  was  under 
stood.  I  told  him  to  draw  accordingly,  lie  might 
draw.  It  was  not  settled  that  he  was  to  have 
that  salary ;  it  was  settled  between  him  and  me, 
and  in  the  meantime  he  could  draw,  and  if  the  com 
pany  ratified  or  sustained  me,  it  was  all  right.  I 

546  do  n°t  pretend  that  was  in  the  letter,  but  it  was 
understood.  Everything  was  understood.  I  was 
willing  it  should  be  done,  but  I  did  not  promise. 
He  says  it  was  settled.  The  property  I  conveyed 
to  the  History  Company  consisted  of  plates, 
paper,  and  we  have  those  plates  yet.  The  com 
pany  has  had  the  use  of  them  right  along,  and  I 
have  had  the  benefit,  of  course,  in  accordance 
with  my  shares  in  the  company.  The  paper  was 


547  used  up.  Besides  money  and  outstanding  accounts, 
there  were  these  orders  that  cut  a  very  large  figr 
ure,  and  contracts  with  subscribers;  that  repre 
sented  the  subscribers,  and  also,  in  a  great  many 
cases,  the  amount  of  money.  It  is  classified  here 
as  money.  We  had  paid  for  taking  those  con 
tracts;  we  paid  from  $25  to  $75  apiece  for  taking 
the  order,  that  represented  actual  money  paid  out. 
I  don't  think  Stone  obtained  any  of  those  orders 
that  were  taken.  They  were  taken  by  men  paid 
for  with  money  out  of  my  pocket. 

(Witness  is  shown  a  book  called  "  Literary  In 
dustries,"  which  he  testifies  was  published  by  the 
History  Company  under  his  supervision,  from 
which  the  following  extract  is  read:) 

"  Mr.  Stone  had  followed  me  in  my  historical  efforts 
with  great  interest  from  the  first.  He  had  watched  the 
gradual  accumulation  of  material,  and  the  long  labor  of 
its  utilization.  He  believed  thoroughly  in  the  work,  its 
plan,  the  methods  by  which  it  was  wrought  out,  and  the 
great  and  lasting  good  which  would  accrue  to  the  country 
from  its  publication.  He  was  finally  induced  to  accept 
the  important  responsibility  of  placing  the  work  before 
the  world,  of  assuming  the  general  management  of  its 
publication  and  sale,  and  devoting  his  life  thereto.  No  one 
could  have  been  better  fitted  for  this  arduous  task  than 
he.  With  native  ability  were  united  broad  experience 
and  a  keen  insight  into  men  and  things.  Self-reliant, 
yet  laborious  in  his  efforts,  bold,  yet  cautious,  careful  in 
speech,  of  tireless  energy,  and  ever  jealous  for  the  reputa 
tion  of  the  work,  he  entered  the  field  determined  upon 
success.  A  plan  was  devised  wholly  unique  in  the  annals 


1 86 

of  book  publishing,  no  less  original,  no  less  difficult  of 
execution  than  were  the  methods  by  which  alone  it  was 
made  possible  for  the  author  to  write  the  work  in  the 
first  place.  And  with  unflinching  faith  and  loyalty  Mr. 
Stone  stood  by  the  proposition  until  was  wrought  out  of 
it  the  most  complete  success." 

I  was  aware  of  this  matter  being  published  in 
the  book  when  it  was  published.  It  was  not  pub 
lished  without  my  knowledge,  that  is  supposed  to 
be  history.  This  is  not  history,  it  is  personal 
reminiscences;  I  published  it  as  true,  and  believed 
it  to  be  true.  I  believed  at  that  time  that  all  I 
said  of  Mr.  Stone  was  true.  My  history  needs 
some  explanation.  This  book  was  published  in 
1890,  and  I  knew  when  it  was  published;  I  knew 
it  was  sent  forth  to  the  world.  That  biography 
was  written  by  me  in  Cheyenne  in  the  year  1884 
or  1885,  and  while  I  was  in  Cheyenne  and  writ 
ing  that  there,  he  was  playing  the  traitor,  trying 
to  sell  me  out  to  my  brother  on  some  proposition. 
If  I  had  known  at  that  time  what  I  know  now,  I 
would  not  have  allowed  this  to  be  published  in 
1890;  I  should  not  have  printed  it  if  I  had  been 
as  fully  advised  as  I  am  now.  I  would  not  say 
that  if  I  had  known  in  1890  what  I  learned  be 
tween  1884  and  1890,  I  wTould  not  have  allowed 
the  book  to  go  out  with  that  statement.  I  wanted 
to  avoid  an  eruption  with  Stone,  and  if  I  had 
left  that  out  there  would  have  been  trouble.  I 


.87 

553  revised  the  book  and  published  another  edition; 
that  was  a  year  or  two  later;  it  was  in  1891  or 
1892.  I  don't  know  if  I  was  to  publish  this 
again  if  I  would  not  print  it  now.  I  have  never 
wanted  to  do  anything  that  would  injure  Mr. 
Stone  in  any  way.  I  might  probably  publish  now 
what  I  said  there,  if  I  were  printing  it;  I  would 
not  change  it  at  all.  In  1890,  when  the  second 
edition  was  produced,  it  was  greatly  reduced  in 
volume.  I  cut  out  a  great  many  things;  it  is 

55^  reduced  a  good  deal.  Precisely  the  same  thing 
was  published  in  that  edition  as  was  in  the  first 
one,  and  it  goes  to  show  I  did  not  want  any 
quarrel  with  Mr.  Stone.  I  did  not  want  a  row 
with  him. 

Q.     You  told  the  truth  about  him  because  you 
did  not  want  a  row  with  him  ? 

A      Yes,  as  far  as  you  tell  the  truth  in  giving 
the  good  qualities   of   a   man   in   his  biography, 

ere  leaving  out  the  bad  about  him.  When  you  speak 
of  the  facts  a  man  has  done  you  must  not  neces 
sarily  tell  the  truth  about  it,  or  let  him  alone. 
You  can  state  the  good  things  he  has  done  in 
business  and  praise  him  for  that,  and  overlook 
the  bad  and  that  is  about  what  I  did.  I  could 
say  a  great  deal  bad  about  the  man  after  I  had 
said  what  I  did  here  in  his  praise;  I  did  not  say 
everything  bad  there  that  could  be,  said. 


1 88 

556  Q.     (Reading  from    the  work  written  by  de 
fendant:) 

"Mr.  Stone  had  followed  me  in  my  historical  efforts 
with  great  interest  from  the  first.  He  had  watched  the 
gradual  accumulation  of  material,  and  the  long  labor  of 
its  utilization.  He  believed  thoroughly  in  the  work,  its 
plan,  the  methods  by  which  it  was  wrought  out  and  the 
great  and  lasting  good  which  would  accrue  to  the  country 
from  its  publication.  He  was  finally  induced  to  accept 
the  important  responsibility  of  placing  the  work  before 
the  world,  of  assuming  the  general  management  of  its 
publication  and  sale,  and  devoting  his  life  thereto.  No 

557  one  could  have  been  better  fitted  for  this   arduous  task 
than  he." 

Do  you  see  any  place  there  where  you  could 
have  said  anything  bad  about  him  ? 

"With  native  ability  were  united  broad  experience  and 
a  keen  insight  into  men  and  things.  Self-reliant,  yet 
laborious  in  his  efforts,  bold,  yet  cautious,  careful  in 
speech,  of  tireless  energy,  and  ever  jealous  for  the  reputa 
tion  of  the  work,  he  entered  the  field  determined  upon 
success." 

558  That  was  all  true? 
A.     Yes,  sir. 

Q.  "A  plan  was  devised  wholly  unique  in  the  annals 
of  book  publishing,  no  less  original,  no  less  difficult  of 
execution  than  were  the  methods  by  which  alone  it  was 
made  possible  for  the  author  to  write  the  work  in  the  first 
place.  And  with  unflinching  faith  and  loyalty,  Mr. 
Stone  stood  by  the  proposition  until  was  wrought  out  of  it 
the  most  complete  success." 

That  was  all  true  ? 


189 

559  A.  I  should  not  say  that  lie  was  not  loyal 
now.  That  is  about  the  only  word  there  that  I 
would  qualify.  As  I  have  said  I  made  Stone  a 
present  of  5  per  cent  additional  of  the  stock  of 
the  History  Company;  that  was  entirely  without 
any  consideration,  but  out  of  my  own  generous 
feelings.  There  had  been  some  talk  about  a 
musical  department.  Mr.  Stone  went  East  to  get 
some  agency;  we  wanted  the  Steinway  and  some 
other,  and  failed  entirely  to  do  that;  failed  to  ac 
complish  anything.  On  that  expectation,  and  in 
consideration  of  that  partly,  and  partly  to  bind  him 
further  to  the  proposition,  I  gave  him  the  5  per 
cent  without  any  solicitation  or  any  idea  on  his 
part  he  was  to  get  it  until  I  handed  it  to  him. 
The  reason  I  gave  him  the  stock  was  from  gener 
osity,  and  to  make  him  loyal  to  my  interest.  The 
value  of  the  gift  was  about  $25,000  as  it  turned 
out.  I  viewed  it  at  the  time  as  a  gift  to  him,  and 

O 

r^j  as  a  matter  of  fact  it  put  at  least  $20,000  in  his 
pocket.  His  labor  never  brought  me  anything 
except  to  collect  and  apportion  out  the  money  I 
had  paid  in.  He  had  received  5  per  cent  and  got 
$20,000  in  the  way  of  dividends.  I  did  not  get 
it  from  his  efforts,  I  got  it  from  money  put  in 
from  A.  L.  Bancroft  &  Company,  which  was  put 
in  by  me,  which  had  been  from  a  lifetime  of  labor 
and  it  was  that  money  which  was  coming  back, 


562  and  not  money  that  Stone  had  earned  in  any  way. 
The  letter  written  by  me  to  Stone  congratulating 
him  on  the  first  dividend,  and  saying  that  it  was 
to  him  alone  that  the  success  was  due,  was  rather 
exaggerated;  I  feel  that  the  letter  was  more 
exaggerated  now  than  at  the  time  I  wrote  it. 
Circumstances  have  changed  since  then.  I  knew 
how  the  business  had  been  conducted  up  to  that 
time,  knew  what  the  results  were,  and  knew  that 
it  had  resulted  in  a  dividend.  I  think  I  got  80 

s-  «-? 

**  per  cent  or  85  per  cent  in  dividends;  the  differ 
ence  was  that  I  was  getting  back  my  money,  and 
was  getting  none  of  his  money:  I  had  no  fault  to 
find  with  Stone;  at  the  time  when  I  wrote  him  I 
meant  praise ;  I  spoke  kindly  to  him  and  encour 
aged  him  to  go  forward  and  do  all  he  could.  I  did 
not  think  the  facts  were  misrepresented  to  him,  to 
construe  that  statement  literally  would  be  to  say 
that  Stone  wrote  the  history  as  published,  and  he 
had  got  the  dividends  out  of  his  own  labor  and 
capital.  It  is  not  a  fact  that  I  and  Stone  and  a 
third  party  organized  what  was  called  the  His 
tory  Company  of  Mexico;  I  think  there  was 
some  talk  of  using  that  term  down  in  Mexico. 
We  did  not  organize  a  company  in  the  fall  and 
lose  from  $30,000  to  $40,000;  we  did  not  organize 
any  company  at  that  time  that  I  have  any  recol 
lection  of.  It  was  talked  of,  and  I  think  we  used 


565  the  name  of  Mexico,  but  without  any  organiza 
tion  or  any  significance  in  particular.  We  did 
some  business.  The  third  party  was  Urrea;  he 
was  merely  engaged.  There  was  no  agreement 
that  Mr.  Stone  was  to  have  anything  except  as  it 
belonged  to  the  History  Company,  and  his  profits 
were  to  come  in  under  that  category.  There 
never  was  any  arrangement  that  Urrea  should 
have  two-fifths  and  that  Stone  and  I  were  to  have 
three-fifths.  We  may  have  talked  of  something 
of  that  kind,  and  if  so,  it  entirely  went  out  of  my 
mind. 

(Paper  shown  to  witness,  which  he  identified 
as  being  in  his  handwriting,  which  is  offered  in 
evidence  and  read  as  follows:) 

"  BASIS  OF  BUSINESS. 

N.  J.  Stone  and  H.  H.  Bancroft  will  ship  goods  to  Mex 
ico  for  R.  Urrea  to  sell,  Urrea  to  act  as  manager,  with  a 
salary  of  $250  Mexican  money  a  month,  and  2-5  of  the 
567  profits,  while  Stone  and  Bancroft  will  have  3-5  of  the 
profits  without  salary  and  attend  to  Cal.  and  U.  S.  pur 
chases,  all  goods  from  the  United  States  to  be  ordered 
through  them  exclusively,  and  the  money  remitted  to 
them  for  the  same. 

Stone  and  Bancroft  to  appoint  the  Cashier,  and  be 
responsible  for  his  acts.  The  Cashier  will  receive  and 
account  for  all  money  and  goods,  keep  such  books  and 
write  such  letters  as  are  necessary,  or  as  he  may  be  able 
to  do  ;  have  charge  of  store  and  goods,  and  be  responsi 
ble  therefor  ;  make  out  monthly  report,  keeping  one  copy 
on  file  and  rendering  a  copy  to  Stone  and  Bancroft  and  a 


192 

^68  c°Py  to  Urrea  ;  every  three  months  rendering  a  full 
statement  of  condition  of  business,  with  division  of  pro 
fits,  2-5  to  R.  Urrea  and  3-5  to  Stone  and  Bancroft.  The 
business  must  be  done  strictly  for  cash,  no  money  bor 
rowed,  nor  debts  of  any  kind  contracted.  Until  the  His 
tory  Company  of  San  Francisco  is  fully  paid  for  all  grtods 
sent,  all  receipts  except  Histories  in  Mexico  to  be  taken 
by  Mex.  Co.  at  ^  retail  price,  American  money,  but  not 
to  be  charged  up  at  once,  but  only  accounts  can  be 
adjusted,  the  whole  time  however  not  to  exceed  six 
months.  The  Mex.  Co.  to  have  the  benefit  of  all  sub 
scriptions  taken  up  to  this  time  (March  10th,  1887)  free 
of  charge,  but  to  stand  expense  of  settlements  and  col- 

569  lections  of  Vols. — that  is  to  say,  to  clean  up  the  History 
business  in  Mexico  free  of  charge.     This  does  not  include 
the  100  sets  first  sold  to  Govt.  on  which  the  Mex.  Co.  are 
to  receive  5  per  cent.  com.  for  delivery  and  collection, 
with  no  further  commissions  to  outsiders ;  no  one  con 
nected  with  the  business  may  overdraw  his  account,  or 
use  any  of  the  money  of  the  business  except  for  its  own 
legitimate  purposes,  no  money  of  the  business  is  ever  to 
be  loaned  to  any  person  or  persons  under  any  considera 
tion  ;  no  one  in  the  service  of  the  Company  is  to  do  busi 
ness  on  his  own  account. 

A.  R.  Urrea  is  to  hold  himself  personally  responsible 
to  Stone  and  Bancroft  for  the  faithful  performance  of 

570  agreement  so  far  as  he  is  concerned.     Prices  of  History 
delivered  in  S.  F.  in  American  money,  ^  of  retail  price  ; 
Life  of  Diaz,  the  same.     Small  History  of  Mexico,  the 
same.     Readers, — prices  to  be  made  according  to  cost. 
After  first  shipment  of  goods  by  History  Co.  of  Cal.  and 
the  cleaning  up  of  Histories  scattered  through  the  Re 
public,  all  orders  of  History  Co.  Mex.  to  History  Co.  Cal., 
are  to  be  accompanied  by  the  money. 

The  Cashier  to  send  A.  R.  Urrea  a  copy  of  the  monthly 
report,  and  of  all  reports,  wherever  he  may  be ;  and  the 
History  Co.  of  Cal.  to  send  the  History  Co.  of  Mex.  a 
statement  of  accourt  every  month.  The  History  Co.  of 


193 

cyi  Mex.  are  to  have  the  exclusive  sale  of  Bancroft's  Works 
in  Mexico  and  Cuba,  and  on  all  orders  taken  by  the  His 
tory  Co.  S.  F.  are  to  be  allowed  to  the  Mex.  Co.  a  com., 
the  same  as  if  taken  by  the  History  Co.  Mex. 

Should  any  question  arise  which  cannot  be  settled  by 
the  parties  themselves  or  deputies,  such  matters  shall  be 
settled  by  arbitration,  in  the  usual  way,  in  San  Francisco ; 
neither  Urrea,  Stone  nor  Bancroft  shall  dispose  of  their 
interest  in  this  business,  or  any  part  of  it,  except  to  the 
others,  or  either  one  of  them,  until  the  business  is  incor 
porated. 

The  History  Co.  of  Mexico  has  the  right  to  sell  Life 
of  Diaz  and  Readers ;  and  Spellers,  wherever  it  may 

572  choose  ;  but  this  does  not  prevent  the  History  Co.  of  Cal. 
from  selling  the  same  anywhere  outside  of  Mexico  and 
Cuba.  Any  person  traveling  at  the  expense  of  the  busi 
ness  at  any  time,  must  on  his  return  file  with  the  Cashier 
a  written  statement  of  his  expenses,  before  the  same  be 
allowed. 

r,  Robert  Vantright  is  to  be  the  first  Cashier,  with 
expenses  paid  from  S.  F.,  and  a  salary  to  begin  when  he 
starts,  of  $150.00  a  month,  Mexican  money. 

Urrea's  expenses  to  be  from  S.  F.  and  his  salary  to  date 
from  first  of  March." 

We  did  not  begin  business  in  Mexico  upon  that 
573  basis;  that  is  a  scratch  of  a  paper  that  I  made  out, 
a  scheme  that  was  running  in  my  head  one  day 
.  and  Stone  got  it  and  kept   it  to  bring   it  here  in 
this  case  as  an  important   matter,  as  an  agree 
ment.     It  was  not  an  agreement,  that  paper  was 
not  signed  and  never  was  in  effect  in  any  way. 
We  did  not  ship  any  goods  to  Mexico  under  that 
transaction.     We  never  shipped  any  goods  on  ac 
count   of   myself  and  Stone   and  Urrea.     Urrea 


i94 


574  went  down  there  to  3ell  goods,  bat  we  never 
trusted  him;  we  didn't  begin  business  in  Mexico; 
I  did  not  have  prepared  a  set  of  school  books  or 
readers  under  that  memorandum.  Stone  and 
Urrea  and  I  did  not  start  business  there  and  have 
prepared  a  set  of  school  books,  readers;  the  His 
tory  Company  did  it,  not  Stone.  Stone  and 
Urrea  and  I  did  not  prepare  school  books  for 
Mexico,  and  begin  trading  with  them  or  selling 
them.  We  prepared  them,  or  the  History  Coin- 
pany  prepared  them  here,  and  they  were  shipped, 
but  not  Stone  and  Urrea  and  myself  in  partner 
ship.  They  were  made  and  shipped  to  Mexico 
and  sold  there,  some  of  them.  We  got  up  sev 
eral  series  and  shipped  them  there;  we  had 
several  men  attending  to  the  selling  of  them; 
Urrea  was  one  until  he  proved  to  be  a  rascal,  and 
then  we  had  another  one,  and,  finally,  the  last 
rascal  we  got  there  was  Trigo.  All  of  them 
proved  unfaithful.  I  discovered  Trigo  to  be  a 
rascal  after  he  came  back  here,  and  had  some 
lawsuit  with  me.  To  the  best  of  my  recollection, 
the  memorandum  shown  me  was  simply  a  mem 
orandum  that  was  on  my  desk  and  fell  into  Stone's 
hands,  and  nothing  whatever  was  done  under  it; 
no  books  were  opened,  and  no  books  were  kept  to 
the  best  of  my  recollection.  I  had  forgotten  all 
about  this.  I  did  not  say  that  the  paper  was  not 


195 

577  intended  to  be  delivered  to  Stone,  and  that  he 
found  it  and  kept  it  ever  since  for  the  purpose  of 
some  law  suit;  I  did  not  say  he  took  it  from  my 
desk.  I  say  I  scratch  off  such  things  very  often, 
schemes  that  come  into  my  head,  and  I  handed 
them  to  him,  submitted  them  to  him.  I  don't 
know  whether  it  was  taken  from  my  desk  or  I 
handed  it  to  him.  As  a  matter  of  fact,  that 
.property  was  all  given  to  him.  He  never  paid 
anything  on  that  arrangement.  The  paper  is  not 
*'  dated  that  I  can  see  I  say  the  paper  had  passed 
out  of  my  mind  altogether;  I  have  no  recollec 
tion  of  the  paper  at  all,  it  was  a  simple  memo 
randum  of  something;  I  do  not  know  where  it 
was  written.  I  do  not  remember  where  I  was  on 
the  10th  of  March,  1887. 

(Letter  shown  witness,  which  he  admits  to  be 
in  his  handwriting.) 

This  paper  indicates  that  I  was  in  the  City  of 
cjg  Mexico  on  the  9th  of  March,  1887;  without  re 
ferring  to  this  I  don't  remember  where  I  was  at 
that  time.     I  should  say  I  was  in   the  City  of 
Mexico  on  the  9th  of  March. 

(Looking  at  the  page  of  the  memorandum  al 
ready  offered  in  evidence.) 

From  this,  I  should  say  I  was  in  the  City  of 
Mexico  at  the  time  that  was  written;  that  I 
wrote  it  there  and  mailed  it  to  Mr.  Stone,  it  could 


196 

580  hardly  be  otherwise.  I  did  not  say  that  it  was 
written  in  San  Francisco  and  on  my  desk,  and 
that  Stone  got  it  in  a  surreptitious  way.  I  said  I 
was  in  the  habit  of  scratching  off  memoranda;  it 
seems  that  I  scratched  that  off  in  the  City  of 
Mexico  and  sent  it  to  him.  I  do  not  remember 
that  I  enclosed  it  in  this  letter;  I  presumed  I 
mailed  the  letter  to  Mr.  Stone,  very  likely  at  that 
time,  Mr.  Urrea  was  down  there  with  me  at  that 
time,  if  I  remember  rightly.  We  did  not  make 
[  books  and  ship  them  down  under  that  arrange 
ment.  I  do  not  remember  anything  about  show 
ing  this  to  Urrea,  it  has  passed  entirely  out  of 
my  mind;  there  was  nothing  done  about  it  that  I 
know  of.  This  was  not  sent  by  me  to  Stone  as  a 
basis  of  a  business  proposition  which  I  desired 
him  to  enter  into  with  me  and  Urrea. 

Q.     This  is  a  letter  you  have  already  identified, 
the  last  one  I  showed  you  dated  from  the  City  of 

-g2  Mexico.  March  llth.  I  will  read  a  portion  of 
the  letter:  "I  will  leave  letters  for  Vantright, 
and  a  copy  of  the  basis  of  business  which  I  send 
you,  so  that  he  will  have  the  situation  before  him 
as  well  as  I  can  give  it  to  him.  Urrea  expects  to 
be  gone  about  a  week,  but  probably  Vantright 
will  get  there  before  Urrea  returns,  though  not 
long  before.  I  have  taken  the  greatest  pains  to 
make  everything  clear,  both  to  you  and  Vant- 


i97 

583  right  so  that  the  business  here  may  be  intelli 
gently  followed  by  you  from  the  beginning.  I 
have  done  what  I  came  to  do.  I  might  see  more 
people  if  I  should  stay  longer,  but  it  would 
amount  to  nothing.  I  would  be  glad  to  get  more 
money,  but  I  should  have  to  stay  a  month  or  six 
weeks  longer  for  it,  and  I  know  it  is  in  shape  now 
for  Urrea  to  get.  I  hope  you  will  so  get  this 
business  in  hand  as  to  be  able  to  manage  it  with 
out  much  extra  wear  upon  yourself.  I  shall  have 
•"  to  leave  this  and  everything  else  before  very  long 
entirely  with  you,  after  you,  that  and  I  hope  to 
see  the  day  when  everything  will  be  on  such  a 
thoroughly  sound  and  profitable  basis  as  to  run 
without  the  heavy  care  and  risk  it  is  now  under; 
in  fact,  it  has  got  to  come  to  that,  and  if  we  now 
work  and  extend  here  and  there,  it  is  one  day, 
and  that  not  very  far  distant  to  drop  what  does 
not  pay,  even  if  in  the  end  we  come  down  to  a 

rgc  peanut  stand."  You  gave  a  copy  of  that  also  to 
Urrea  and  Vantright,  mentioned  in  that  letter  ? 
A.  I  think  not,  no  sir.  I  should  infer  from 
the  letter  that  both  Urrea  and  Vantright  that 
neither  of  them  were  there  at  that  time.  I  say 
it  passed  out  of  my  mind,  that  whole  thing,  as  a 
matter  of  fact  Vantright  got  there  shortly  after 
that.  If  I  remember  right,  Urrea  shortly  went 
out  of  the  whole  thing,  and  nothing  came  of  it. 


198 

586  I  don't  remember  whether  after  my  return  to  San 
Francisco,  I  spoke  to  Stone  about  this  paper,  or 
not.  I  spoke  to  him  about  the  Mexican  business 
as  a  matter  of  course,  and  we  were  talking  about 
business  all  the  time,  one  thing  and  another.  I 
presume  after  this  letter  of  March  10th,  I  con 
sulted  with  or  wrote  Stone  concerning  the  pros 
pects  of  business  in  Mexico  ;  I  don't  remember 
anything  of  the  kind,  but  it  would  be  strange  if 
I  did  not.  I  may  have  talked  to  him  about  enter- 

^  '  ing  into,  or  carrying  out  business  on  this  basis, 
but  I  have  no  recollection  of  anything  about  it, 
it  fell  to  the  ground,  and  there  was  nothing  done 
under  it.  When  I  returned  to  San  Francisco, 
there  was  no  business  talk  that  I  can  now  remem 
ber.  I  would  not  say  that  this  written  basis  of 
business  that  I  sent  him  from  Mexico  was  never 
referred  to  after  my  return  ;  I  do  not  remember 
speaking  about  it ;  there  is  nothing  more  that  I 
recollect  about  it  than  appears  from  these  papers. 
I  do  not  rember  sending  the  goods  to  Mexico  by 
Urrea,  the  result  of  which  was  a  loss  of  $30,000 
or  $40,000  ;  such  a  loss  did  not  result  through 
Urrea.  We  sent  down  some  goods,  I  think  he 
sent  for.  He  was  there  and  Vantright  went 
down  and  took  charge  of  those  goods,  and  Urrea 
left  some  time  after  that,  and  has  had  nothing  to 
do  with  the  business  since.  I  don't  remember 


i99 

589  that  there  was  any  loss  on  his  trip  down  there  ; 
there  was  no  association  that  sent  goods  to  Mex 
ico  except  the  History  Company.  If  Stone  and 
I  were  charged  on  the  books  of  the  History  Com 
pany  with  the  goods  sent  to  Mexico,  they  should 
not  have  been  so  charged.  I  have  no  recollection 
of  having  consulted  with  Morrison  to  any  extent 
as  to  the  removal  of  Stone  from  the  office  of 
Vice-President  of  the  Company  ;  it  may  have 
been  alluded  to  that  if  he  did  not  do  better  than 
he  was  doing,  he  might  have  to  change.  I  have 
no  recollection  of  consulting  with  Morrison  about 

O 

that  matter.  I  have  no  recollection  of  talking  to 
Morrison  about  it ;  it  seems  to  me  that  something 
came  up  in  case  that  Stone  was  not  elected.  I 
did  not  say  that  I  did  not  talk  with  Morrison 
about  it,  but  I  have  no  recollection  of  it.  I  did 
not  remove  Mr.  Stone  after  my  return  ;  I  do  not 
know  that  you  could  call  it  a  removal — at  the 
en!  next  election  of  officers,  he  was  not  elected  and 
Mr.  Morrison  was.  I  think  Mr.  Morrison  was 
not  there  at  the  time.  Morrison  could  not  have 
been  elected  without  my  wishing  him  to  be  so. 
The  duties  which  Stone  had  been  performing  did 
not  devolve  upon  Morrison  after  his  election. 
Mr.  Stone  attended  to  his  business  as  manager, 
and  Mr.  Morrison  to  his  as  Vice-President,  and 
attended  to  outside  business.  We  had  never 


200 

592  elected  a  manager;  the  by-laws  did  not  provide 
for  a  manager.  The  business  began  to  decrease 
after  the  sale  of  the  histories ;  no  other  business 
was  added  to  it ;  it  required  some  work  on  the 
part  of  the  management  to  supply  the  entire 
market  with  the  history  ;  that  end  was  accom 
plished  largely  before  the  organization  of  the  His 
tory  Company.  At  that  time  there  were  some 
7,000  and  two  or  three  hundred  good  orders  on 
the  books.  At  the  time  Mr.  Stone  left,  when  it 
was  Wound  up,  counting  all  that  had  been  deliv 
ered,  there  were  some  6,000  good  orders,  show 
ing  a  loss  during  his  term  there  of  over  1,000 
good  orders  instead  of  a  gain  ;  some  of  them 
turned  out  bad ;  there  was  no  increase  but  rather 
a  decrease  in  the  number  of  good  orders  during 
the  time  that  Stone  served  as  manager  of  the 
History  Company.  Some  of  the  orders  taken 
before  the  Bancroft  fire  were  bad.  It  may  have 
keen  that  the  great  bulk  of  the  orders  which 
turned  out  bad  were  taken  before  the  fire, 
although  I  don't  think  so.  If  they  were,  Mr. 
Stone  took  them  as  bad  orders  and  paid  out  good 
money  for  them.  There  were  nearly  10,000 
orders  taken  altogether  ;  I  don't  think  they  were 
all  taken  before  the  fire.  Besides  all  that  were 
marked  as  bad,  the  number  that  went  into  the 
History  Company  at  the  time  of  its  organization, 


201 

595  there  were  some  seven  thousand  and  two  or  three 
hundred,  the  actual  value  of  which  it  is  hard  to 
give  ;  they  were  supposed  to  be  good  at  the  time 
and  were  so  counted  and  accepted.  A  good 
many  of  them  were  not  collected,  I  don't  know 
exactly  how,  at  the  end  of  the  term,  there  were 
1,000  less  good  orders  than  when  it  started.  A 
good  many  of  the  orders  that  Stone  took  before 
the  organization  of  the  History  Company  turned 
out  bad,  and  some  he  took  after  the  organization 
of  the  History  Company  turned  out  bad,  but  I 
don't  know  what  proportion  of  the  lot.  I  say 
most  decidedly  that  Stone  helped  to  wreck  the 
business.  I  did  not  intentionally  have  anything 
to  do  with  wrecking  the  business.  I  worked  very 
hard  for  the  business  during  the  whole  time, 
receiving  no  salary  for  it,  and  if  it  is  wrecked,  I 
don't  think  it  could  be  charged  to  me.  It  is 
pretty  well  wrecked.  During  the  time  Stone  was 
in  the  management  of  it,  it  was  wrecked  past 
redemption.  My  judgment  is  that  Stone  wrecked 
it  and  not  myself.  It  is  not  a  fact  that  I  wrote 
and  published  things  which  caused  the  wreck  and 
ruin  that  I  have  spoken  of. 

RE- DIRECT    EXAMINATION. 

I  have  no  recollection  of  ever  having  placed  a 
saw-horse  on  the  desk  of  Mr.  Stone  ;  I  may  have 


202 

598  done  so.  There  were  some  saw-horses  in  the  aisle 
where  they  walked  along,  and  his  desk  not  being- 
used,  I  may  have  picked  up  a  saw-horse  and  laid 
it  on  the  desk.  I  don't  remember  it.  I  don't 
remember  kicking  any  basket.  The  money  fur 
nished  in  this  Mexican  business  to  make  up  what 
ever  loss  was  incurred  in  it  came  from  the  His 
tory  Company,  but  in  reality  it  came  from  me. 


GEORGE  H.  MORRISON 

was  recalled    for  further  cross-examination,  and 
testified  as  follows  : 

I  know  Mr.  Boyns.  I  first  met  him  about 
three  years  ago.  I  do  not  remember  whether  I 
knew  him  in  June,  1889.  I  knew  him  as  an 
employee  of  the  History  Company. 

Question  by  plaintiff's  counsel :  I  will  ask  you 
if  it  is  not  the  fact  that  while  Mr.  Boyns  was  an 
600  employee  of  the  History  Company,  between  Sep 
tember,  1889,  and  March,  1890,  at  the  History 
Company's  office,  in  the  City  and  County  of  San 
Francisco,  you  did  not  point  to  Mr.  Stone  and 
say  to  him,  (Boyns),  "That  man  is  a  snake  in  the 
grass,  he  is  a  bad  man,  look  out  for  him,  have 

O  '  * 

nothing  to  do  with  him,"  or  words  to  that  effect  ? 

This  question  was  objected  to  by  defendant  on 

the  ground  that  it  was  irrelevant  and  immaterial, 


203 

6oi  and  not  cross  examinntion,  and  as  Laving  taken 
place  two  years  before  Mr.  Stone  claimed  to  have 
left  the  History  Company,  and  on  the  further 
ground  that  this  witness  is  not  a  party  to  the  case, 
and  the  defendant  could  not  be  bound  by  his  state 
ments  to  Mr.  Boyns,  or  anybody  else,  that  Mr. 
Stone  was  a  snake  in  the  grass,  and  that  it  is  a 
collateral  matter. 

Mr.  REDDY  :     It  is  the  purpose  of  laying  the 

foundation  for  contradiction  on  that  point.     This 

602 

witness  stated  that  he  had  never  said  anything 

by  way  of  criticism  of  a  fellow  officer  or  anybody 
else. 

The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  duly  excepted. 

Exception   No.  34. 

A.  I  don't  remember  using  any  such  expres 
sion  to  Mr.  Boyns,  or  any  one  else. 

I  know  Mr.  S.  B.  Moore.  I  have  known  him 
6O  ,  about  the  same  length  of  time  that  I  have  known 
Mr.  Boyns. 

Question  by  plaintiff's  counsel :  Do  you  remem 
ber  having  said  to  Mr.  S.  B.  Moore  at  the  place 
I  have  named  in  the  History  Company's  office 
along  about  July,  1889,  that  Mr.  Stone  just  the 
same  as  robbed  him  by  discriminating  against  him 
in  the  allowance  of  commission,  and  that  it  was 
just  the  same  as  taking  money  out  of  his  pocket, 
or  words  to  that  effect  ? 


2O4 

604  Tliis  question  was  objected  to  by  defendant  on 
the  ground  that  it  was  irrelevant  and  immaterial, 
and  not  cross  examination,  and  entirely  collateral 
to  any  question  presented  here. 

A.     I  have  no  recollection  of  any  such  conver 
sation. 

Witness  continuing :  Mr.  Stone  was  then 
managing  the  business ;  the  matter  was  entirely 
in  his  hands — all  the  details.  I  had  nothing  to 
do  with  making  contracts  or  fixing  commissions. 
If  some  money  was  taken  out  of  Mr.  Moore  and 
paid  to  the  company,  I  would  be  a  participant  in 
the  profits  with  them.  I  have  no  recollection  of 
any  such  conversation  either  with  Boyns  or 
Moore.  I  remember  that  Stone  was  not  very 
regular  in  his  attendance  at  the  business  during 
the  latter  part  of  the  term.  During  the  latter 
months,  after  my  return  from  Mexico,  he  was  not 
very  faithful  in  his  attendance  at  the  office.  I  do 
606  1)Ot  mean  to  state  anything  as  to  the  manner  in 
which  Stone  transacted  the  business  at  the  office 
prior  to  my  return  from  Mexico  in  1892.  When 
I  gave  my  testimony  on  that  subject,  it  was  in 
relation  to  his  attendance  after  my  return  from 
Mexico.  Stone  never  made  any  application  to  me 
that  I  remember  to  have  his  desk  removed  from 
one  part  of  the  History  Company's  office  to  any 
other  part.  If  he  had  done  anything  of  that 


205 

607  kind,  I  should  remember  it.  I  never  told  Stone 
that  he  had  no  right  in  the  History  Company's 
office. 

DEFENDANT  RESTS. 


W.  C.  BOYNS 

,    was  called  as  a  witness  for  plaintiff  in  rebuttal, 

^      Q 

and  after  being  duly  sworn,  testified  as  follows  : 
I  had  conversations  on  several  occasions  with 
Mr.  Morrison  concerning  Stone  while  I  was  an 
employee  of  the  History  Company.  My  employ 
ment  began  there  in  September,  1892,  I  think, 
but  I  am  not  sure.  I  had  a  conversation  with 
Mr.  Morrison  in  the  History  Company's  office,  in 
the  City  and  County  of  San  Francisco,  while  I 
was  an  employee  of  that  company — several  con- 
600  versations  concerning  Mr.  Stone,  two  or  three 
that  I  can  say  positively. 

Question  by  plaintiff's  counsel :  State  whether 
you  had  any  conversation  with  Mr.  Morrison  in 
the  month  of  September,  or  at  any  other  time, 
between  the  month  of  September,  1889,  and 
March,  1890,  have  a  conversation  in  which  Mor 
rison  said,  pointing  to  Stone,  "  That  man  is  a 
snake  in  the  grass,  a  bad  man,"  or  words  to  that 


206 

610  effect.  This  question  was  objected  to  by  defend 
ant  on  the  ground  that  it  was  irrelevant  and  im 
material,  that  it  was  an  attempt  to  contradict  the 
witness  on  a  collateral  matter. 

A.  Yes  sir ;  that  expression  was  used  by 
Morrison  with  reference  to  Stone  on  several  occa 
sions.  He  said  Stone  was  a  snake  in  the  grass, 
that  he  was  a  bad  man,  and  no  good  generally. 
I  cannot  recall  any  specific  occasion  ;  it  was  sim 
ply  the  general  tenor  of  his  instructions  to  me 
when  he  would  go  away,  that  I  was  not  to  have 
any  dealings  with  Mr.  Stone,  for  the  reason  that 
he  was  no  good.  I  cannot  remember  the  exact 
words  he  used. 

CROSS-EXAMINATION. 

Those  were  practically  standing  instructions  to 
me.  I  knew  that  Stone  was  the  manager  of  the 
History  Company,  but  I  was  not  working  under 
him.  I  have  no  feelings  toward  Mr.  Morrison. 
I  have  not  a  very  high  opinion  of  his  character. 
I  don't  feel  friendly  towards  Mr.  Bancroft.  I 
have  no  friendly  feelings  towards  him.  I  have 
some  litigation  pending  against  the  History  Com 
pany  now. 


S.  B.  MOORE 
was  called  as  a  witness  for  plaintiff  in  rebuttal, 


207 

613  and  after  being  duly  sworn,  testified  as  follows  : 

I  reside  in  San  Francisco,  and  am  an  under 
writer  for  the  New  York  Life  Insurance 
Company.  I  know  Mr.  Morrison,  and  was 
acquainted  with  him  during-  the  year  1889.  I 
was  employed  by  the  History  Company  during 
the  whole  of  that  year. 

Question  by  plaintiff's  counsel  :  State  whether 
or  not  you  heard  Mr.  Morrison,  at  the  History 
Company's  office,  in  the  City  and  County  of  San 
Francisco,  in  the  month  of  September,  1889,  or 
at  any  other  time  between  that  and  the  first  of 
March  of  the  following  year,  say  to  you  that  Mr. 
Stone  had  as  good  as  robbed  you  in  discriminat 
ing  against  you  in  commission,  and  that  it  was 
equivalent  to  robbery,  or  words  to  that  effect? 

The  question  was  objected  to  by  defendant,  on 
the  ground  that  it  was  irrelevant  and  immaterial, 
and  an  attempt  to  contradict  the  witness  on  a  col- 
615  lateral  matter. 

The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  duly  excepted. 

Exception  No.  35. 

A.     I  did  sir. 

CROSS-EXAMINATION. 

When  I  was  employed  by  the  History  Com 
pany,  I  was  engaged  by  Mr.  Stone.  Colonel 


208 

616  Morrison  told  me  that  Mr.  Stone  had  nothing 
more  to  do  with  the  work  I  was  engaged  in  the 
last  few  months  I  was  with  the  company,  that  I 
should  not  consult  with  him  at  all  about  it,  but 
that  Morrison  was  the  man,  that  Mr.  Bancroft 
had  made  him  the  manager  of  this  particular 
department,  and  I  should  look,  not  only  to  him 
self,  but  to  Mr.  Ruddick  and  Mr.  Boyns,  who 
were  under  him.  So  far  as  pay  was  concerned,  I 
was  under  Mr.  Stone's  orders,  but  I  was  under 
'  Mr.  Morrison's  orders.  I  don't  know  that  I  have 
any  particular  feeling  towards  Morrison,  only  he 
has  made  statements  that  don't  seem  to  hold  out 
as  reported.  That  was  in  reference  to  my  com 
mission  with  the  company.  He  made!  some 
misrepresentations  about  my  commission.  In 
the  conversation  which  I  have  testified 
to,  Morrison  told  me  that  I  ought  to  have 
had  more  compensation  than  Stone  was  willing  to 

618  S*ve  me-  ^  ^at  particular  time,  as  far  as  the 
engagement  was  concerned,  I  was  with  Stone  ;  I 
should  say  the  bargain  was  made  with  Stone  for 
this  office,  and  then  very  much  to  my  astonish 
ment,  Mr.  Morrison  told  me  that  Mr.  Stone  had 
nothing  to  do  with  the  bureau,  that  Mr.  Bancroft 
had  placed  him  at  the  head  of  it,  and  I  should 
have  nothing  to  do  with  Mr.  Stone  whatever. 
He  told  me  that  Stone  had  paid  me  the  very 


209 

619  smallest  amount  that  anybody  in  the  agency  had. 
He  said,  "Mr.  Moore,  it  is  like  putting  his  hand 
in  your  pocket  and  taking  out  your  good  gold,  doing 
as  he  has  done  ;  it  is  simply  robbery,"  arid  then 
he  reiterated  what  he  said  to  Mr.  Boyns  that  he 
was  a  snake  in  the  grass,  and  that  he  wished  me 
to  have  nothing  to  do  with  him  ;  consequently,  I 
told  him,  that  thereafter  I  would  not  go  out 
through  Mr.  Stone's  office,  but  I  would  go  out  of 
the  front  office,  which  he  told  me  would  be  the 
proper  thing  to  do,  so  that  I  would  not 
come  in.  contact  with  Mr.  Stone.  He  told  me 
that  Stone  was  a  snake  in  the  grass  and  a  bad 
man,  and  to  have  nothing  to  do  with  him.  I 
thought  at  the  time  that  he  was  telling  me  the 
truth,  and  I  afterwards  went  and  examined  the 
books.  That  is  the  sum  and  substance  of  the 
conversation  which  I  had  with  Mr.  Morrison, 
that  he  wanted  me  to  have  more  money  from  the 

62  x  History  Company  than  Mr.  Stone  was   willing 
to  pay  me,  for  the  business  I  had  done. 


N.  J.  STONE, 

the  plaintiff,  was  recalled  as  a  witness  for  plaintiff 
on  rebuttal,  and  testified  as  follows: 

I  heard  the  testimony  of  Dr.  Miller  while  he 
was  on  the  stand,  in  which  he  said  I  had  not  paid 


210 

622  him  the  $500  which  he  charged  me  for  personal 
services  to  my  boy. 

Question  by  plaintiff's  counsel :  State  whether 
you  paid  that  to  him,  or  not  ? 

This  question  was  objected  to  by  defendant  on 
the  ground  that  it  was  irrelevant  and  immaterial, 
and  an  attempt  to  contradict  Dr.  Miller  on  a 
question  entirely  collateral,  and  brought  out  by 
plaintiff  on  cross-examination,  and  objected  to  at 
the  time  by  defendant. 

MR.  REDDY  :  If  Your  Honor  please,  it  would 
be  hardly  fair  to  bring  Dr.  Miller  here  on  the 
stand  and  put  this  witness  in  the  light  of  having 
refused  to  pay  anything  for  services  rendered,  and 
not  permit  him  to  show  the  real  fact,  or  contra 
dict  him  if  we  can. 

MR.  McCuTCHEN :  We  brought  Dr.  Miller 
here  to  testify  to  such  things  as  we  considered 
relevant,  and  counsel  went  out  of  the  way,  in 
624  sP^e  °f  our  objection,  and  insisted  that  Dr.  Mil 
ler  should  state  the  facts  in  relation  to  the  ser 
vices  rendered  to  the  plaintiff's  boy,  and  the  ren 
dition  of  his  bill  therefor.  This  was  on  his  cross- 
examination  and  against  our  objection. 

The  objection  was  overruled  by  the  Court,  to 
which  ruling  defendant  duly  excepted. 

Exception  No.  36. 

A.     I  did  pay  him  the  bill.     I  paid  $500. 


211 

625  I  never  told  Mr.  Elliott  the  History  Company 
was  going  to  pieces.  I  never  said  anything  to 
him  about  the  condition  of  the  History  business. 
I  never  stated  to  Mr.  Bancroft  in  any  conversa 
tion  with  him  that  I  would  bring  suit  and  break 
up  the  business  of  the  History  Company.  Mr. 
Bancroft  never  presented  to  me  5  per  cent  of 
the  stock  of  the  History  Company.  Prior  to  the 
purchase  of  the  Bancroft  Company  in  1887,  and 
between  that  time  and  the  organization  of  the  His 
tory  Company  in  1886,  Bancroft  and  I  were 
associated  together,  in  the  Mexican  Company. 
We  were  equal  partners  in  publishing  books  and 
selling  them  in  Mexico,  together  with  Mr.  Urrea, 
according  to  an  arrangement  we  entered  into 
together,  we  did  not  draw  papers,  that  was  the 
understanding,  that  we  were  to  manufacture 
books  and  send  them  to  Mexico,  and  carried  on 
the  business.  After  the  purchase  of  A.  L.  Ban- 
croft  by  the  Bancroft  Company,  the  subscription 
department  of  A.  L.  Bancroft  was  taken  at  once 
in  the  History  Company  and  became  a  part  of  it, 
and  Mr.  Bancroft  and  I  were  equal  partners  in 
that,  and  we  also  secured  the  agency,  Eastern 
agency,  for  books  and  he  and  I  were  equal  part 
ners  in  that,  and  we  were  also  equally  interested 
in  the  Bancroft  Company.  After  we  had 
arranged  these  matters,  I  was  placed  in  the  posi- 


212 

628  tion  of  being  an  equal  partner  in  the  Bancroft 
Company,  a  business  down  stairs  which  was  all 
right,  and  up  stairs  I  was  in  charge  of  the  sub 
scription  department  and  I  was  in  charge  of  the 
Mexico  branch  of  the  History,  in  which  I  had 
one-half,  and  I  was  owner  of  ]  0  per  cent  of  the 
History  Company,  and  I  told  Mr.  Bancroft  it 
was  a  very  awkward  position  to  place  a  man  in, 
and  I  thought  he  should  adjust  that  matter  ;  I 
only  having  an  interest  of  10  per  cent  of  the 
stock  in  one  part  of  the  business  and  50  per  cent 
of  the  other,  so  afterwards  in  settling  that  mat 
ter,  we  decided  he  should  issue  to  me  5  per  cent, 
more  of  the  History  stock,  and  my  interest  in 
the  entire  thing  should  be  15  per  cent  and  that 
was  the  arrangement,  and  that  was  done.  We 
carried  on  business  in  Mexico  under  that  arrange 
ment,  and  it  continued  up  to  the  time  I  was 
deposed  as  Vice-President.  The  History  Com- 

610  Pany  became  responsible  in  San  Francisco,  and 
paid  for  the  material  that  was  sent  to  Mexico. 
We  paid  it  in  San  Francisco  from  the  general 
funds,  with  the  understanding  that  that  was  to  be 
the  first  money  that  was  paid  back,  and 
after  that  we  were  to  divide  the  profits.  That 
was  the  consideration  upon  which  the  5  per  cent 
of  the  History  Company's  stock  was  delivered  to 
me  by  Mr.  Bancroft.  It  is  not  a  fact  that  the 


213 

631  dividends  that  were  paid  by  the  History  Com 
pany  came  from  the  collections  of  accounts  and 
matters  which  Bancroft  had  transferred  to  the 
History  Company.  They  came  from  the  orders 
that  were  taken  very  largely  after  the  organiza 
tion  of  the  History  -Company ;  after  the  fire. 
Only  a  small  proportion  of  the  accounts  trans 
ferred  by  Bancroft  to  the  History  Company  were 
collectable.  I  know  that  over  60  per  cent  of  the 
orders  which  remained  on  the  books  at  the  time 
^  of  the  fire,  were  cancelled  as  worthless.  A  great 
deal  was  found  to  cost  as  much  to  collect  as  it 
was  worth. 

CROSS-EXAMINATION. 

I  was  the  manager  of  the  department.  This 
Mexican  business,  on  the  basis  of  which  I  got  5  per 
cent  more  of  the  stock  of  the  History  Company, 
got  all  its  money  from  the  History  Company  to 
633  Pav  a^  *ts  expenses,  and  at  the  time  that  money 
was  being  paid  out  90  per  cent  of  it  belonged  to 
Mr.  Bancroft  and  10  per  cent  of  it  belonged  to 
me.  Yet  I  was  to  have  50  per  cent  of  it,  and 
he  was  to  have  50  per  cent,  although  his  money 
was  used  in  that  proportion  to  build  up  the  busi 
ness,  and  I  was  to  manage  it.  I  did  not  pay  out 
a  dollar  individually  in  entering  into  this  Mexi 
can  enterprise,  of  which  I  was  to  get  5  per  cent 


214 

634  °f  the  stock  of  the  History  Company,  it  all  came 
out  of  the  History  Company  in  which  I  had  an 
interest  of  but  10  per  cent,  and  when  I  got 
through  with  all  these  transactions,  I  had  1  5  per 
cent  of  the  stock  without  paying  out  any  money, 
whereas  I  only  had  10  per  cent  before  that.  The 
demand  which  I  made  on  Mr.  Dorland  was 
shortly  after  the  first  of  January,  1893.  I  can 
not  tell  the  date.  It  was  taken  down  by  a  short 
hand  reporter,  who  may  have  written  it  up,  but 
^  I  don't  know.  Mr.  Borland's  reply  was  that  he 
had  no  authority  and  would  not  allow  me  to  go 
to  work  there,  that  Mr.  Bancroft  was  away  and 
he  was  not  in  charge,  and  he  had  no  authority 
and  would  not  permit  me  to  go  to  work.  That  was 
his  language,  I  am  quite  sure  of  that.  We  had 
several  more  conversations  back  and  forth.  That 
was  all  he  said  on  that  subject.  I  asked  him  if 
he  was  in  charge,  and  he  said  he  was.  I  asked 
him  if  he  would  let  me  go  to  work  and  he  said 
he  would  not,  that  he  had  no  authority  to  let  me 
go  to,  work,  that  he  would  not  let  me  go  to  work. 


Thereupon,  the  testimony  was  closed.  De 
fendant  moved  and  requested  the  Court  to  sub 
mit  to  the  jury  the  following  special  issue,  to  wit: 


215 

637  Were  the  services  claimed  to  have  been  per 
formed  by  the  plaintiff  rendered  for  the  History 
Company,  or  for  the  defendant  ? 

The   motion  and    request  were   denied  by  the 
Court,  to  which  ruling  defendant  duly  excepted. 
Exception  No.   37. 

Thereupon,  the  Court  charged  the  jury,  as  fol 
lows  : 

CHARGE  TO  THE  JURY : 

GENTLEMEN  OF  THE   JURY  :     This  is  an   action 
630 

brought  by  N.  J.  Stone  against  H.  H.  Bancroft, 

setting  up  as  the  foundation  of  the  suit,  a  con 
tract  which  has  been  read  to  you  several  times 
during  the  trial,  and  alleging  that  the  plaintiff  has 
honestly  and  faithfully  performed  all  the  terms 
and  conditions  of  such  contract,  and  that  the 
defendant  has  failed  and  neglected  to  perform  the 
terms  and  conditions  upon  his  contract  to  be  per 
formed,  and  has  failed  and  neglected  and  refused 
639  to  pay  the  stipulated  amount  as  claimed  to  be  pro 
vided  in  the  contract,  and  demands  judgment  in 
the  sum  of  forty-nine  hundred  dollars  for  salary 
for  fourteen  months,  at  the  rate  of  three  hundred 
and  fifty  dollars  a  month,  and  claims  in  the  prayer 
that  the  plaintiff  is  entitled  to  forty-nine  hun 
dred  dollars  and  interest  thereon,  at  the  rate  of 
seven  per  cent  per  annum.  The  answer 
denies  that  the  plaintiff  has  honestly  and  faith- 


2l6 

640  fully  or  honestly  or  faitlifull}'  or  otherwise  per 
formed  the  terms  and  conditions  of  the  contract. 
And  denies  that  the  defendant  has  failed  and  neg 
lected  to  perform  the  conditions  of  the  contract 
mentioned  in  the  plaintiff's  complaint  upon  this 
defendant's  part  to  be  performed  ;  and  denies,  that 
he  agreed  under  said  contract  to  pay  to  plaintiff 
the  sum  of  $350  for  his  services  and  denies  that 
there  remains  due  and  unpaid  under  the  contract 
the  sum  of  $4900,  or  any  sum  whatever  ;  and  for 
a  further  and  separate  answer  to  plaintiff's 
complaint,  the  defendant  avers  that  on  the  23d 
day  of  September,  1886,  the  History  Company 
mentioned  in  the  agreement  set  forth  in  plaintiff's 
complaint  was  duly  incorporated  under  and  by 
virtue  of  the  laws  of  the  State  of  California, 
under  the  name  of  the  History  Company,  and 
that  ever  since  said  date,  the  said  History  Com 
pany  has  been  and  still  is  a  corporation  duly 

642  organized,  and  by  virtue  of  the  laws  of  the  State 
of  California,  have  been  engaged  in  business  in 
the  City  of  San  Francisco,  State  of  California ; 
that  immediately  upon  the  incorporation  of  said 
History  Company,  defendant  transferred  to  the 
said  corporation,  the  properties  mentioned,  in  said 
agreement  set  forth  in  plaintiff's  complaint,  and 
thereupon  both  plaintiff  and  defendant  became 
and  ever  since  have  been  and  now  are  stock- 


217 

643  holders  of  and  in  said  corporation,  arid  after  the 
formation  of  said  corporation  carried  on  and  con 
ducted  the  business  mentioned  in  said  agreement, 
and  defendant  has  had  nothing  to  do  with  the 
business  since  that  time,  except  as  an  officer  of 
the  said  corporation;  that  from  the  date  of  the 
incorporation  of  the  said  History  Company  until 
on  or  about  the  first  day  of  July,  1892,  plaintiff 
acted  in  the  capacity  of  general  manager  thereof, 
but  plaintiff  has  not  at  any  time  since  the  forma- 
""  tion  of  said  corporation,  or  at  any  other  time 
since  the  date  of  the  said  agreement,  performed 
for  or  rendered  any  services  to  the  defendant 
_  whatever  ;  and  further  answers  that  ever  since  on 
or  about  the  1st  day  of  July,  1892,  said  plaintiff 
has  been  engaged  in  carrying  on  and  conducting 
for  himself  and  other  persons,  and  in  opposition 
to  said  History  Company  a  business  of  the  same 
kind  and  character  of  that  carried  on  and  con- 

6  A  c  ducted  by  the  said  History  Company,  and  where 
fore,  the  defendant  having  fully  answered  prays 
to  be  dismissed  with  his  costs. 

That  plaintiff  has  asked  some  instructions, 
which  I  give  as  follows  :  The  Jury  are  instructed 
by  the  Court  that  the  agreement  set  forth  in  the 
complaint,  and  which  has  been  read  to  you,  is 
admitted  by  the  answer,  and  you  should  find  the 
facts  accordingrlv. 


2l8 

646  You  are  instructed  that  the  true  intent  and 
meaning  of  said  agreement  was  that  the  History 
Company  referred  to  therein,  should  be  incorpor 
ated  under  the  laws  of  the  State  of  California, 
by  the  corporate  name  of  the  History  Company. 

That  after  the  said  incorporation  of  said  Com 
pany,  it  should  conduct  the  business  of  publish 
ing  and  selling  the  Historical  Works  of  H.  H. 
Bancroft,  and  such  other  works,  and  conduct  such 
other  business,  as  it  might  from  time  to  time 
*'  determine  upon. 

That  the  said  Bancroft  at  the  time  of  the  mak 
ing  of  said  agreement,  did  thereby  sell  and  assign 
to  said  Stone,  one-tenth  interest  in  the  said  His 
tory  Company,  and  the  property  of  said  Corn- 
any,  upon  the  following  conditions  :  That  the 
said  N.  J.  Stone  should  devote  his  whole  time 
and  best  energies  as  far  as  his  health  and  strength 
would  permit,  for  the  period  of  ten  years,  from 
the  date  of  said  agreement,  to  the  publication  and 
sale  of  the  Historical  Works  of  H.  H.  Bancroft, 
and  of  such  other  works  and  business,  and  con 
duct  such  other  business  as  from  time  to  time 
might  be  taken  up  by  the  said  History  Company, 
and  that  the  said  Stone  should  not  enter  in  or 
engage  in,  directly  or  indirectly,  any  other  mer 
cantile  or  manufacturing  business,  or  in  any  other 
business  or  occupation,  which  should  in  any  wise 


219 

649  absorb  his  mind  and  strength,  or  interfere  with 
his  interest  in  behalf  of  the  History  Company, 
during  the  said  term  of  ten  years. 

If  you  find  from  the  evidence  that  plaintiff 
engaged  in  any  business  or  occupation,  it  must 
appear  it  was  of  the  character  specified  and  pro 
hibited  in  the  agreement ;  otherwise,  it  cannot  be 
regarded  as  a  breach  of  said  agreement,  or  an  act 

«^  o 

prohibited  thereby. 

Upon  the  incorporation,  plaintiff  was  entitled 
to  10  per  cent  of  the  capital  stock  of  the  His 
tory  Company,  upon  the  conditions  mentioned, 
and  that  in  case  of  failure  on  the  part  of  said 
Stone  to  carry  out  the  agreement  in  its  full  letter 
and  spirit,  or  any  part  thereof,  then  the  said  one- 
tenth  interest  in  said  History  'Company  was  to 
be  forfeited,  and  to  revert  to  the  said  H.  H.  Ban 
croft. 

There  is  no  provision  that  said  Stone  should 
forfeit  his  salary  provided  for  in  said  agreement, 
or,  that  he  should  forfeit  anything  more  than  the 
one-tenth  interest  in  said  History  Company,  so 
long  as  Stone  performed  the  duties  required  of 
him  by  the  contract,  he  is  entitled  to  such  salary 
of  $350. 

There  are  other  conditions  mentioned  in  said 
agreement  which  are  not  involved  in  this  suit, 


220 


652  and  therefore,  it  is  not  necessary  to  call  your 
attention  specially  to  them. 

The  contract  referred  to  is  a  contract  between 
the  plaintiff,  N.  J.  Stone,  and  the  defend 
ant,  H.  H.  Bancroft.  It  is  not  a  contract 
between  Stone  and  the  History  Company,  but  a 
contract  between  Stone  and  Bancroft,  requiring 
on  the  part  of  Stone  a  performance  of  the  acts 
above  prescribed  and  none  other 

If  you  find  from  the  evidence  that  the  said  N. 
53  J.  Stone  performed  the  services  required  of  him 
by  said  contract,  or  that  he  was  willing  and  ready 
at  the  time,  and  has  continued  willing  and  ready, 
and  in  the  manner  required  by  said  agreement,  to 
perform  said  services,  but  was  prevented  from 
doing  so  by  the  defendant,  or  under  his  directions, 
you  should  find  in  favor  of  the  plaintiff. 

You  are  instructed  that  the  plaintiff',  if  pre 
vented  from  performing  the  services  prescribed 

6  "4  by"  said  contract,  by  the  defendant,  had  the  right 
to  engage  in  any  occupation  or  business  not  pro 
hibited  by  the  terms  of  said  contract,  and  to  earn 
as  much  money  as  he  could,  in  such  occupation  or 
business.  The  only  effect  of  engaging  in  such 
occupation  or  business  would  be,  that  whatever 
he  earned,  should  be  deducted  from  the  amount 
of  the  salary  claimed  in  this  action. 


221 

655  There  is  testimony  tending  to  show  that  the 
plaintiff  was  not  discharged  from  employment 
under  said  agreement,  either  by  the  defendant  or 
the  History  Company.  Under  this  state  of  facts, 
the  plaintiff  was  simply  bound  to  hold  himself  in 
readiness  to  perform  such  services  as  may  have 
been  required  of  him  by  the  said  defendant  or  the 
History  Company.  If  you  find  from  the  evi- 
,  dence,  that  he  was  not  required  or  allowed  by 
either  the  said  History  Company  or  the  said 
defendant  to  perform  any  services,  but  held  him 
self  in  readiness  to  execute  the  contract,  in  accord 
ance  with  its  terms,  such  readiness  to  perform  is 
equivalent  to  performance. 

It  is  alleged  in  the  complaint  and  admitted  by 
the  defendant  in  his  answer,  that  the  salary  sued 
for  by  the  plaintiff  has  not  been  paid  ;  that  is  to 
say,  it  is  admitted  in  the  answer  that  the  salary 
has  not  been  paid,  since  the  first  day  of  July, 
1892.  If  you  find  from  the  evidence  that  the 
defendant,  either  by  himself  or  in  conjunction 
with  others,  prevented  the  plaintiff  from  discharg 
ing  the  duties  required  of  him  under  the  said 
contract,  the  defendant  cannot  complain  of  the 
non-performance  of  acts  or  duties  which  he  him 
self  prevented  ;  and  the  plaintiff  in  such  case,  and 
in  so  far  as  he  was  prevented  from  performing  by 
the  acts  of  the  defendant,  is  entitled  to  the  salary 


222 

658  mentioned  in  the  complaint,  the  same  as  if  all  the 
duties  required  by  said  contract  had  been  per 
formed. 

The  defendant  asks  some  instructions,  which  I 
give  as  follows: 

If  you  find  that  the  services  for  which  the 
plaintiff  seeks  to  recover  in  this  action,  were 
rendered  for  the  History  Company  and  not  for 
the  defendant,  then,  I  instruct  you  that  he  can 
not  recover  against  the  defendant. 

MR.  REDDY:  To  that  instruction  we  object  as 
not  being  within  the  pleadings. 

MR.  MoCuTOHEN :  We  will  take  our  excep 
tions  afterwards. 

This  is  an  action  to  recover  for  services  ren 
dered  by  the  plaintiff,  and  in  order  to  find  for  the 
plaintiff  you  must  find  that  he  actually  rendered 
the  services  for  which  he  sues,  or  was  prevented 
from  so  doing  by  the  defendant,  or  by  his  direc- 
660  tions.  In  this  case  it  is  not  necessary  to  show 
that  he  was  prevented  from  performing  services 
by  some  person  other  than  the  defendant,  or  by  his 
directions.  If  you  find  that  the  plaintiff  was  not 
dismissed  or  discharged  from  the  employment,  but 
that  he  quit  such  employment  on  account  of  the 
treatment  to  which  he  was  subjected  from  others, 
and  not  by  the  defendant,  then  I  instruct  you 
that  this  was  an  abandonment  of  the  employment 


223 

66 1  by  him,  and  that  he   cannot  recover  except  for 
services  rendered  before  such  abandonment. 

This  is  an  action  to  recover  for  services  claimed 
to  have  been  rendered  under  that  contract,  and  it 
is  therefore  necessary,  in  order  to  find  for  the 
plaintiff,  to  find  that  he  actually  rendered  the 
services,  or  was  prevented  from  so  doing  by  the 
defendant  or  under  his  direction. 

I  instruct  you  that  the  defendant  is  not  bound 
by  any  declaration  of  any  officer  of  the  History 
Company,  unless  such  declaration  was  made  by 
him  or  by  his  direction. 

If  you  find  from  the  evidence  that  after  the 
making  of  the  agreement  set  out  in  the  com 
plaint,  the  plaintiff  entered  into,  or  engaged  in, 
directly  or  indirectly,  any  other  mercantile  or 
manufacturing  business  which  did  in  any  way  ab 
sorb  his  mind  and  strength,  then  I  instruct  you 
that  when  he  so  entered  in  or  engaged  in  such 
66-  business  he  violated  the  agreement. 

The  Court  instructs  the  jury  as  a  matter  of  law, 
that  where  two  parties  enter  into  a  lawful  con 
tract  upon  sufficient  consideration,  and  one  of  the 
parties  is  ready  and  willing  to  perform  and  makes 
preparation  and  offers  to  perform  on  his  part,  but 
is  prevented  from  performing  by  the  other  party, 
the  party  so  ready  and  willing  to  perform  can  re 
cover  all  damages  suffered  by  him  by  reason  of 
the  default  of  the  other  party. 


224 

664  r^^ie  Court  instructs  the  jury  that  to  entitle  the 
plaintiff  to  recover  in  this  case,  he  must  prove  by 
a  preponderance  of  evidence  the  contract  substan 
tially  as  alleged  in  the  declaration,  and  also  the 
breach  of  the  contract  as  therein  alleged  and 
charged  for  him,  the  plaintiff,  to  recover,  and  un 
less  he  has  done  so,  the  jury  should  find  for  the 
defendant. 

Before  any  party  to  an  obligation  can  require 
another  party  to  perform  any  act  under  it,  he 
^  must  fulfill  all  conditions  precedent  thereto  im 
posed  upon  himself  and  must  be  able  and  offer  to 
fulfill  all  conditions  concurrent  so  imposed  upon 
him  on  the  like  fulfillment  of  the  other  party. 

When  one  party  offers  to  fulfill  his  part  in  a 
concurrent  obligation,  and  the  other  refuses  or 
neglects  to  perform  his  part,  he  who  is  ready  and 
offers  has  fulfilled  his  engagement,  and  may 
maintain  on  action  for  the  default  of  the  other. 
555  An  employment,  even  for  a  specified  term,  may 
be  terminated  at  any  time,  by  the  employer  in 
case  of  any  willful  breach  of  duty  by  an  employee, 
in  the  course  of  employment,  or  in  case  of  hab 
itual  neglect  of  his  duty,  or  continued  incapacity 
to  perform  it. 

An  etnyloyment,  even  fora  specified  term,  may 
be  terminated  by  the  employee  at  any  time,  in 
case  of  any  wilful  or  permanent  breach  of  the  ob- 


225 

667  ligations  of  his  employer  to  him  as  an  employee. 

An  employee  who  quits  the  service  of  his  em 
ployer  for  good  cause,  is  entitled  to  such  propor 
tion  of  the  compensation  which  would  become 
due  in  case  of  full  performance,  as  the  services 
which  he  had  already  rendered  bear  to  the  ser 
vices  which  he  was  to  render  as  full  performance. 

For  the  breach  of  an  obligation  arising  from 
contract,  the  measure  of  damages,  is  the  amount 
which  will  compensate  the  party  aggrieved  for  all 
the  detriment  proximately  caused  thereby,  or 
which  in  the  ordinary  course  of  things,  would  be 
likely  to  result  therefrom. 

The  detriment  caused  by  the  breach  of  an 
obligation  to  pay  money  only,  is  deemed  to  be  the 
amount  due  by  the  terms  of  the  obligation, 
with  interest  thereon. 

The  Jury  are  the  judges  of  the  effect  and  value 
of  evidence  addressed  to  them ;  but  this  power 
669  °f  Judgmg  °f  the  effect  of  evidence  is  not  arbi 
trary,  but  to  be  exercised  with  legal  discretion 
and  in  subordination  of  the  rules  of  evidence. 

The  Jury  are  not  bound  to  decide  in  conform 
ity  with  the  declarations  of  any  number  of  wit 
nesses  which  do  not  produce  conviction  in  their 
minds,  against  a  less  number,  or  against  a  pre 
sumption  or  any  other  evidence  satisfying  their 
minds. 


226 

670  A  witness  who  willfully  testifies  falsely  as  to 
one  fact  is  to  be  distrusted  in  other  parts  of  his 
testimony.  If  you  find  that  a  witness  has  delib 
erately  testified  falsely  in  one  part  of  his  testi 
mony  in  this  case,  you  have  the  right  to  reject 
the  whole  of  the  testimony  of  that  witness, 
which  is  not  shown  by  other  evidence  in  the  case 
to  be  true. 

In  civil  cases  the  affirmative  of  the  issue  must 
be  proved,  and  when  the  evidence  is  contradic- 
71  tory,  the  decision  must  be  made  according  to  the 
preponderance  of  evidence. 

Three-fourths  of  the  Jury  may  agree  upon  a 
verdict. 

The  form  of  your  verdict  will  be,  '*  We,  the 

Jury,  find  for  the  plaintiff  in  the  sum  of  

dollars,  naming  the  amount. 

Or,  "  We,  the  Jury,  find  for  the  defendant." 
The  verdict  to  be  signed  by  the  foreman. 

672  

Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge,  to  wit : 
Exception  No.  38. 

"  If  you  find  from  the  evidence  that  plaintiff 
engaged  in  any  business  or  occupation,  it  must 
appear  it  was  of  the  character  specified  and  pro 
hibited  in  the  agreement  otherwise,  it  cannot  be 


673  regarded  as  a  breach  of  said  agreement,  or  an  act 
prohibited  thereby." 

Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge,  to  wit : 
Exception  No.   39. 

"  If  you  find  from  the  evidence  that  the  said 
N.  J.  Stone  performed  the  services  required  of 
him  by  said  contract,  or  that  he  was  willing  and 
ready  at  the  time,  and  continued  willing  and 
ready  and  in  the  manner  required  by  said 
'*  agreement,  to  perform  said  services,  but  was 
prevented  from  doing  so  by  the  defendant,  or 
under  his  directions,  you  should  find  in  favor  of 
the  plaintiff." 

Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge,  to  wit : 

Exception  No.   40. 

"  You  are  instructed  that  the  plaintiff  if  pre 
vented  from  performing  the  services  prescribed  by 
675  said  contract  by  the  defendant,  had  the  right  to 
engage  in  any  occupation  or  business  not  prohib 
ited  by  the  terms  of  said  contract,  and  to  earn 
as  much  money  as  he  could  in  such  occupation  or 
business.  The  only  effect  of  engaging  in  such 
occupation  or  business  would  be,  that  whatever 
he  earned,  should  be  deducted  from  the  amount 
of  the  salary  claimed  in  this  action." 


228 

676       Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge,  to  wit : 
Exception  No.  41. 

"  There  is  testimony  tending  to  show  that  the 
plaintiff  was  not  discharged  from  employment 
under  said  agreement,  either  by  the  defendant  or 
by  the  History  Company.  Under  this  state  of 
facts,  the  plaintiff  was  simply  bound  to  hold  him 
self  in  readiness  to  perform  such  services  as  may 
have  been  required  of  him  by  the  said  defendant  or 
77  the  History  Company.  If  you  findTrom  the  evi 
dence,  that  he  was  not  required  or  allowed  by 
either  the  said  History  Company  or  the  said 
defendant  to  perform  any  services,  but  held  him 
self  in  readiness  to  execute  the  contract,  in  accord 
ance  with  its  terms,  such  readiness  to  perform  is 
equivalent  to  performance." 

Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge,  to  wit : 

678  "  It  is  alleged  in  the  complaint  and  admitted  by 
the  defendant  in  his  answer,  that  the  salary  sued 
for  by  the  plaintiff  has  not  been  paid ;  that  is  to 
say,  it  is  admitted  in  the  answer  that  the  salary 
has  not  been  paid  since  the  first  day  of  July* 
1892.  If  you  find  from  the  evidence  that  the 
defendant,  either  by  himself  or  in  conjunction 
with  others,  prevented  the  plaintiff  from  dis 
charging  the  duties  required  of  him  under  the 


229 

679  said  contract,  the  defendant  cannot  complain  of 
the  non-performance  of  acts  or  duties  which  he 
himself  prevented  ;  and  the  plaintiff  in  such  case, 
and  in  so  far  as  he  was  prevented  from  perform 
ing  by  the  acts  of  the  defendant,  is  entitled  to 
the  salary  mentioned  in  the  complaint,  the  same 
as  if  all  the  duties  required  by  said  contract  had 
been  performed." 
Exception  No.  42. 

Defendant  duty  excepted  to  the  following  por 
tion  of  said  charge,  to  wit: 

"  The  Court  instructs  the  jury  as  a  matter  of 
law  where  two  parties  enter  into  a  lawful  con 
tract  upon  sufficient  consideration,  and  one  of  the 
parties  is  ready  and  willing  to  perform  and  makes 
preparation  and  offers  to  perform  on  his  part,  but 
is  prevented  from  performing  by  the  other  party, 
the  party  so  ready  and  willing  to  perform  can  re 
cover  all  damages  suffered  by  him  by  reason  of 
68 1  the  default  of  the  other  party." 

Exception  No.  43. 

Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge,  to  wit: 

"The  Court  instructs  the  jury  that  to  entitle 
the  plaintiff  to  recover  in  this  case,  he  must  prove 
by  a  preponderence  of  evidence  the  contract  sub 
stantially  as  alleged  in  the  declaration,  and  also 
the  breach  of  the  contract  as  therein  alleged  and 


230 

682  charged  for  him,  the  plaintiff  to  recover,  and  un 
less  he  has  done  so,  the  jury  should  find  for  the 
defendant." 
Exception  No.  44. 

Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge  to  wit: 

"  Before  any  party  to  an  obligation  can  require 
another  party  to  perform  any  act  under  it,  he 
must  fulfill  all  conditions  precedent  thereto  im 
posed  upon  himself,  and  must  be  able  and  offer 
to  fulfill  all  conditions  concurrent  so  imposed  upon 
him  on  the  like  fulfillment  by  the  other  party. 

Exception   No    45 

Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge,  to  wit: 

"When  one  party  offers  to  fulfill  his  part  in  a 

concurrent    obligation,  and   the  other   refuses  or 

neglects  to  perform  his  part,  he  who  is  ready  and 

offers  has  fulfilled  his  engagement,  and  may  main- 

684  tain  an  action  for  the  default  of  the  other." 

Exception  No.  46. 

Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge,  to  wit: 

"  For  the  breach  of  an  obligation  arising  from 
contract,  the  measure  of  damages  is  the  amount 
which  will  compensate  the  party  aggrieved  for  all 
the  detriment  proximately  caused  thereby,  or 


231 

685  which,  in  the  ordinary  course  of  things,  would  be 
likely  to  result  therefrom.  " 
Exception  No.  47. 

Defendant  duly  excepted  to  the  following  por 
tion  of  said  charge,  to  wit: 

"  The  detriment  caused  by  the  breach  of  an  ob 
ligation  to  pay  money  only,  is  Deemed  to  be  the 
amount  due  by  the  terms  of  the  obligation,  with 
interest  thereon." 

Exception  No.   48. 

686 


Defendant  requested  the  Court  to  charge  the 
jury  as  follows: 

~"  If  you  find  from  the  evidence  that  after  the 
execution  of  the  written  agreement  set  out  in  the 
complaint,  a  corporation  called  the  History  Com 
pany  was  formed;  that  defendant  turned  over  or 
transferred  to  that  corporation  the  property  men- 
687  tioned  in  the  agreement,  and  caused  to  be  issued 
and  delivered  to  the  plaintiff,  certificates  repre 
senting  one-tenth  of  the  capital  stock,  then  I  in 
struct  you  that  said  agreement  was  fully  per 
formed  by  the  defendant." 

Defendant  requested  the  Court  to  charge  the 
jury  as  follows: 

"You  are  instructed  that  the  written  agree 
ment  set  forth  in  the  complaint  does  not  provide 


232 

688  that  the  salary  of  plaintiff  shall  be  paid  by  defen 
dant." 

The  Court  refused  to  give  such  instruction,  to 
which  refusal  defendant  duly  excepted. 
Exception  No.  49. 

Defendant  requested  the  Court  to  charge  the 
jury  as  follows: 

"  If  the  corporation,  the  History  Company, 
was  formed  and  the  property  mentioned  in  the 
_  agreement  turned  over  to  it,  and  one-tenth  of  the 
stock  issued  and  delivered  to  plaintiff,  and  plain 
tiff  acted  as  and  became  the  manager  of  the  cor 
poration,  then  I  instruct  that  if  plaintiff  has  any 
claim  it  is  against  the  History  Company,  and  not 
against  defendant.'' 

"  Not  warranted  by  the  pleadings,  not  given. 
Jos.  P.  Jones,  Judge." 

The  Court  refused  to  give  such  instruction,  to 
which  refusal  defendant  duly  excepted. 
690      Exception  No.  50. 

Defendant  requested  the  Court  to  charge  the 
jury  as  follows: 

"  This  is  an  action  to  recover  for  services  ren 
dered  by  plaintiff,  and  in  order  to  find  for  the 
plaintiff,  you  must  find  that  he  actually  rendered 
the  services  for  which  he  sues.  In  this  action  it 
is  not  enough  for  him  to  show  that  he  was  pre 
vented  from  performing  the  service." 


233 

691  The  Court  refused  to  give  such  instruction,  to 
which  ruling  defendant  duly  excepted,  but  modi 
fied  said  instruction  so  as  to  make  it  read  as  fol 
lows:  "  This  is  an  action  to  recover  for  services 
rendered  by  plaintiff,  and  in  order  to  find  for  the 
plaintiff,  you  must  find  that  he  actually  rendered 
the  services  for  which  he  sues,  or  was  prevented 
from  so  doing  by  the  defendant,  or  by  his  direc 
tion.  In  this  action  it  is  not  enough  for  him  to 
show  that  he  was  prevented  from  performing  the 
services  by  some  other  person  other  than  defend 
ant,  or  by  his  direction,"  and  as  so  modified  gave 
said  instruction  to  the  jury. 
Exception  No.  51. 

-  Defendant  requested  the  Court  to  charge  the 
Jury  as  follows  : 

"  If  you  find  that  plaintiff  was  not  dismissed 
or  discharged  from  the  employment,  but  that  he 
quit  said  employment  on  account  of  the  treat- 
693  ment  to  which  he  was  subjected,  then  I  instruct 
you  that  this  was  an  abandonment  of  the  employ 
ment  by  him  and  that  he  cannot  recover  except 
for  services  rendered  before  such  abandonment." 

The  Court  refused  to  give  such  instruction  to 
which  refusal  defendant  duly  excepted,  but  mod 
ified  said  instruction  so  as  to  make  it  read  as  fol 
lows  :  "If  you  find  that  plaintiff  was  not  dis 
missed  or  discharged  from  the  employment,  but 


234 

694  that  he  quit  said  employment  on  account  of  the 
treatment  to  which  he  was  subjected  from  others 
and  not  by  the  defendant,  then  I  instruct  you 
that  this  was  an  abandonment  of  the  employment 
by  him  and  that  he  cannot  recover  except  for 
services  rendered  before  such  abandonment,"  and 
as  so  modified  gave  said  instruction  to  the  Jury. 
Exception  No.  52. 

Defendant  requested  the  Court  to  charge  Jury 
as  follows : 

"  This  is  not  an  action  to  recover  damages  for 

o 

breach  of  the  contract  set  out  in  the  complaint 
it  is  to  recover  for  services  claimed  to  have  been 
rendered  under  that  contract  and  it  is  therefore 
necessary  in  order  to  find  for  plaintiff,  to  find 
that  he  actually  rendered  the  service." 

The  Court  refused  to  give  such  instruction,  to 
which  refusal  defendant  duly  excepted,  but  mod 
ified  said  instruction  so  as  to  make  it  read  as  fol- 
696  l°ws  :  ''  This  is  an  action  to  recover  for  services 
claimed  to  have  been  rendered  under  that  con 
tract  and  it  is  therefore  necessary  in  order  to  find 
for  plaintiff,  to  find  that  he  actually  rendered  the 
service,  or  was  prevented  from  so  doing  by  the 
defendant,  or  under  his  direction,"  and  as  so  mod 
ified  gave  said  instruction  to  the  Jury. 
Exception  No.  53. 

Defendant   requested  the  Court   to  charge  the 
Jury  as  follows  : 


235 

697  "  The  remedy  of  an  employee  who  is  prevented 
from  performing  service  is  not  an  action  for  wages 
but  he  should  sue  for  damages  for  the  breach  of 
his  contract." 

The  Court  refused  to  give  such  instruction,  to 
which  refusal  defendant  duly  excepted. 
Exception  No.  54. 

Defendant  requested  the  Court  to  charge  the 
Jury  as  follows  : 

"  I  instruct  you  that  defendant  is  not  bound  by 
any  declaration  by  any  officer  of  the  History 
Company  unless  such  declaration  was  made  by 
his  direction." 

The  Court  refused  to  give  such  instruction,  to 
which  refusal  defendant  duly  excepted,  but  mod 
ified  said  instruction  so  as  to  make  it  read  as  fol 
lows  :  "I  instruct  you  that  defendant  is  not 
bound  by  any  declaration  by  any  officer  of  the  His 
tory  Company,  unless  such  declaration  was  made 
699  by  him  or  by  his  direction,"  and  as  so  modified 
gave  said  instruction  to  the  Jury. 

Exception  No.  55. 

Defendant  requested  the  Court  to  charge  the 
Jury  as  follows  : 

"If  you  find  from  the  evidence  that  after  the 
making  of  the  agreement  set  out  in  the  com 
plaint,  the  plaintiff  entered  into  or  engaged  in, 
directly  or  indirectly,  any  other  mercantile  or 


236 

yoo  manufacturing  business,  then  I  instruct  you  that 
when  he  so  entered  into  or  engaged  in  such  busi 
ness,  he  violated  the  agreement." 

The  Court  refused  to  give  such  instruction,  to 
which  refusal  defendant  duly  excepted,  but  modi 
fied  said  instruction  so  as  to  make  it  read  as  fol 
lows  :  "  If  you  find  from  the  evidence  that  after 
the  making  of  the  agreement  set  out  in  the  com 
plaint,  the  plaintiff  entered  into  or  engaged  in, 
directly  or  indirectly,  any  other  mercantile  or 
'  manufacturing  business,  which  did  in  anywise 
absorb  his  mind  and  strength,  then  I  instruct  you 
that  when  he  so  entered  into  or  engaged  in  such 
business,  he  violated  the  agreement,"  and  as  modi 
fied  gave  said  instruction  to  the  Jury. 

Exception  No.  56. 

Thereupon,  the  jury  retired,  and  returned  and 
rendered  a  verdict  in  favor  of  plaintiff  and  against 
the  defendant  for  the  sum  of  forty-nine  hundred 
702  dollars. 

Thereafter,  and  within  the  time  allowed  by  law, 
the  defendant  duly  served  upon  plaintiff,  and  filed 
in  this  Court,  his  Notice  of  Intention  to  Move 
for  a  New  Trial,  of  which  said  notice,  the  follow 
ing  is  a  copy,  to  wit: 

In  the    Superior   Court  in  and  for   the  County  of 
Contra  Costa,  State   of  California. 


237 

703  N.  J.  STONE, 

Plaintiff. 

vs. 

H.  H.  BANCKOFT, 

Defendant. 


To    the    plaintiff  above    named,    and    Messrs. 
764  Reddy,  Campbell  &  Metson,  his  attorneys: 

You  will  please  take  notice  that  the  defendant 
intends  to  and  will  move  this  Honorable  Court 
to  set  aside  and  vacate  the  verdict  and  decision 
heretofore  rendered  and  entered  in  the  above  en" 
titled  action,  and  to  grant  a  new  trial  thereof, 
upon  the  following  grounds,  to  wit: 

First — Insufficiency  of  the  evidence  to  justify 
the  verdict  of  the  jury. 

Second — That  said  verdict  is  against  law. 
'    5       Third — Errors  in  law  occuring  at  the  trial  and 
excepted  to  by  the  defendant. 

Said  motion  will  be  made  upon  a  statement  of 
the  case  hereafter  to  be  prepared  and  served  upon 
you. 

Dated  March  30th,  1894. 

E.  J.  McCUTCHEN, 
Attorney  for  Defendant. 


238 

706  And  the  defendant  now  specifies  the  following 
particulars  in  which  the  evidence  was  and  is  in 
sufficient  to  justify  the  verdict  of  the  Jury,  and 
the  following  particulars  in  which  said  verdict 
was  and  is  against  law,  and  assigns  the  following 
errors  in  law  occurring  at  the  trial  of  said  action, 

O  * 

and  excepted  to  by  the  defendant. 


ASSIGNMENT  OF  ERRORS. 

707  j 

Particulars  in  which  the  evidence  was  insuffi 
cient  to  justify  the  verdict  of  the  jury. 

The  evidence  was  insufficient  to  justify  the  ver 
dict  of  the  jury  in  this: 

(a.)  That  the  evidence  did  not  show  that 
plaintiff  had  performed  any  services  under  the 
contract  set  forth  in  his  complaint,  between  the 
first  day  of  July,  1892,  and  the  first  day  of  Sep- 

708  tember,  1893. 

(6.)  The  evidence  did  not  show  that  plaintiff 
had  performed  ari}T  services  under  said  contract  for 
the  defendant. 

(c.)  The  evidence  showed  that  plaintiff  did  not 
perform  any  service  for  defendant  under  said  con 
tract,  or  under  any  other  contract. 

(d. )  The  evidence  showed  that  all  of  the  ser 
vice  which  plaintiff  performed  under  that  contract, 


239 

709  and  for  which  he  seeks  to  recover  in  this  action, 
was  performed  for  the  History  Company. 

(e.)  The  evidence  showed  that  said  contract 
had  been  fully  performed  by  the  defendant. 

(/.)  The  evidence  showed  that  the  defendant 
had  not  failed  to  do  anything  which  he  had  under 
taken  or  agreed  by  the  terms  of  said  contract 
to  do. 

(g.)     The  evidence  did  not  show  that  defend 
ant  agreed  to  pay  plaintiff  the  salary  mentioned 
'        and  referred  to  in  said  agreement. 

(Ji.)     The  evidence  did  not  show  that  plaintiff 

was  entitled  to  receive  said  salary  from  defendant. 

(i.)     The  evidence  showed  that  plaintiff   was 

not  entitled  to  receive  said  salary  from  defendant. 

(j.)     The  evidence  showed  that  defendant  did 

not  agree  to  pay  said  salary  to  plaintiff. 

(k.)     The  evidence  showed  that  plaintiff  did  not 

perform  the  service  for  which   he  seeks  a  recov- 

711  erv  lu  ^s  acti°n>  but  that  he  voluntarily  left  and 

abandoned  the  service  of  the  History  Company 

in  the  year  1892. 

(I.)  The  evidence  showed  that  during  the  time 
for  which  plaintiff  seeks  to  recover  from  the 
defendant  in  this  action  for  services  alleged  to 
have  been  performed  under  the  agreement  set 
forth  in  his  complaint,  he  had  engaged  and  was 


240 

712  engaged  in  carrying  on  and  conducting   another 
mercantile  and  manufacturing  business. 

(m.)  The  evidence  showed  that  the  plaintiff 
violated  the  agreement  set  forth  in  his  complaint, 
in  the  month  of  December,  1892,  by  engaging 
in  a  mercantile  and  manufacturing  business  other 
than  that  of  the  History  Company. 

(n.)  The  evidence  showed  that  the  plaintiff 
violated  the  agreement  set  forth  in  his  complaint, 
by  engaging,  during  the  period  between  the 
' I^  months  of  May  and  September,  1893,  in  a  mer 
cantile  and  manufacturing  business,  other  than 
the  business  of  the  History  Company. 

(o.)  The  evidence  showed  that  during  two  or 
three  months  in  the  year  1893,  the  plaintiff  vio 
lated  the  agreement  set  forth  in  his  complaint, 
by  engaging  in  a  mercantile  and  manufacturing 
business  other  than  the  business  of  the  History 
Company. 

(p.)  The  evidence  did  not  show  that  plaintiff 
had  faithfully  or  honestly  performed  the  contract 
set  forth  in  his  complaint,  but,  on  the  contrary, 
the  evidence  showed  that  the  plaintiff  violated 
said  contract  by  engaging  for  a  period  of  two  or 
three  months,  during  the  year  1893,  in  a  mercan 
tile  and  manufacturing  business  other  than  the 
business  of  the  History  Company,  to  wit :  by 
forming  a  co-partnership  with  one  Miller,  for  the 


241 

715  publication  of  a  book  and  for  the  manufacture 
and  sale  of  medical  remedies,  and  by  actually 
engaging  in  and  carrying  on  said  business. 

(q.)  The  evidence  showed  that  plaintiff  did 
not  honestly  or  faithfully  perform  all  or  any  of 
the  terms  or  conditions  of  said  contract  set  forth 
in  his  complaint. 

(r.)  The  evidence  did  not  show  that  plaintiff 
performed  all  the  terms  and  conditions  of  said 
contract,  but  on  the  contrary,  the  evidence  showed 
71  *  that  plaintiff  did  not  perform  any  service  what 
ever  under  said  contract  after  the  31st  day  of 
December,  1892. 

(s.)  The  evidence  did  not  show  that  defend 
ant  agreed  to  pay  to  plaintiff  the  salary  stipu 
lated  in  said  contract,  but  on  the  contrary,  the 
evidence  showed  that  said  salary  was  to  be  paid 
by  the  History  Company  and  that  both  plaintiff' 
and  defendant  understood  that  defendant  was  not 
to  pay  and  was  not  required  to  pay  any  portion  of 
said  salary. 

II. 

Defendant  specifies  the  following  particulars  in 
which  said  verdict  was  against  law,  to  wit : 

(a.)  The  Court  instructed  the  jury  that  if  the 
services  for  which  plaintiff  sought  to  recover  in 
said  action,  were  rendered  for  the  History  Com 
pany  and  not  for  the  defendant,  then  the  plaintiff 


242 

718  could  not  recover  against  the  defendant,  and  that 
all  the  testimony  showed  and  the  plaintiff  him 
self  admitted  and  testified  that  the  services  for 
which   he  sought  to  recover  in  said  action,  were 
performed  for  the  History  Company,  and  not  for 
the  defendant. 

III. 

And  the  defendant  specifies  and  assigns  the 
following  errors  in  law  occurring  at  the  trial  of 

719  said  action  and  excepted  to  by  defendant,  to  wit: 

First — The  Court  erred  in  overruling  the  objec 
tion  of  defendant  to  the  following  question  pro 
pounded  to  the  witness,  N.  J.  Stone:  State  the 
circumstances  ? 

Second — The  Court  erred  in  overruling  the  ob 
jection  of  defendant  to  the  following  question  pro 
pounded  to  the  witness,  N.  J.  Stone:  Did  you 
make  any  contract  with  him  at  that  time? 

Third — The  Court  erred  in  overruling  the  ob- 

'       jection  of   defendant  to  the   following    question 

propounded  to  the  witness,  N.  J.  Stone:    During 

the  time  that  you  were  in  the  management  of  the 

sale  of  the  History,  etc.,  were  any  dividends  paid? 

Fourth — The  Court  erred  in  overruling  the  ob 
jection  of  defendant  to  the  following  question  pro 
pounded  to  the  witness,  N.  J.  Stone:  State 
when,  if  ever,  any  one  interfered  with  you,  any 


243 

721  one  who  had  authority  with  the  company,  inter 
fered  with  your  management  of  the  business  ? 

Fifth — The  Court  erred  in  overruling  the  ob 
jection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  What 
was  his  conduct  there  and  what  was  the  result  of 
it? 

Sixth — The  Court  erred  in  overruling  the  ob 
jection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  When 

722 

you  made  application  for  it,  what  response  did 

you  receive  ? 

Seventh — The  Court  erred  in  denying  the  mo 
tion  of  defendant  to  strike  out  the  following 
answer  given  by  the  witness,  N.  J.  Stone:  The 
boy  in  the  office  was  forbidden  to  keep  any  letters 
for  me. 

Eighth — The  Court  erred  in  overruling  the  ob 
jection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  State 
what  occurred  ? 

Ninth — The  Court  erred  in  overruling  the  ob 
jection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  What 
was  the  answer  ? 

Tenth — The  Court  erred  in  overruling  the  ob 
jection  of  defendant  to.  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  For 
how  much  ? 


244 

724  Eleventh — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  Was 
there  any  money  in  the  treasury  at  the  time  that 
assessment  was  levied  ? 

Twelfth — The  Court  erred  in  overruling  the  ob 
jection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  They 
proceeded  so  far  with  the  assessment  as  to  adver 
tise  your  stock  for  sale  under  that  proceeding, 
?25  didn't  they  ? 

Thirteenth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  What 
reply  did  you  get  from  Morrison  when  you  ap 
plied  to  him  for  instructions  as  to  what  you 
should  do  ? 

Fourteenth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
726  ProPounded  to  the  witness,  N.  J.  Stone :  What 
was  the  reply  of  Dorland  ? 

Fifteenth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  To  what 
effect;  what  did  you  say  to  him  ? 

Sixteenth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  What 


245 

727  was  the  reply  made  by  Dorland  on  that  occasion  ? 

Seventeenth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  State, 
if  you  know  of  your  own  knowledge,  of  defend 
ant  being  present  with  yourself  and  Dorland  and 
others,  and  his  giving  instructions  for  actions,  and 
it  being  obeyed  by  Dorland  ? 

Eighteenth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  introduction  of  ex- 
'       tracts   from    the     book,     "  Literary    Industries " 
offered  b}^  plaintiff. 

Nineteenth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  State 
whether  you  relied  upon  your  own  judgment,  or 
the  judgment  of  your  counsel  in  signing  the 
document  containing  the  words  about  the  partner 
ship. 

Twentieth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  State 
the  reasons  why  you  signed  those  papers  in  full  ? 
Twenty-first — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone:  State 
whether  they  afterwards  advised  you  that  was  a 
mistake  ? 


246 

730  Twenty-second  -The  Court  erred  in  overruling 
the  objection  of  defendant  to  the  following  ques 
tion  propounded  to  the  witness,  N.  J.  Stone: 
Why  did  you  bring  this  suit,  knowing  that  you 
had  commenced  two  suits  against  the  History 
Company,  for  a  portion  of  the  money  involved  in 
this? 

Twenty-third — The  Court  erred   in    overruling 
the  objection  of  defendant  to  the  following  ques 
tion    propounded  to   the    witness,    N.    J.    Stone: 
"     Why  did  you  vote  to   take   your   name   off  the 
letter-heads  if  it  was  disagreeable  to  you  ? 

Tiuenty-fourth — The  Court  erred  in  denying  the 
motion  of  defendant  to  strike  out  the  testimony 
of  the  witness,  D.  R.  Sessions. 

Twenty -fifth- -The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  H.  B.  Hambly:  Do 
you  remember  about  how  many  hours  a  day  he 
attended  in  his  office  ? 

Twenty-sixth — The  Court  erred  in  overruling 
the  objection  of  defendant  to  the  following  ques 
tion  propounded  to  the  witness,  W.  H.  Hartwell: 
State,  if  you  know,  if  defendant  ever  counter 
manded  any  of  Mr.  Stone's  orders  in  the  business  ? 

Twenty-seventh— The  Court  erred  in  overruling 
the  objection  of  defendant  to  the  following  ques 
tion  propounded  to  the  witness,  Jose  M.  Trigo: 


247 

733  Will  you   state  the   subject  of  the   conversation, 
or  conversations,  upon  that  particular  subject  ? 

Twenty-eighth— The  Court  erred  in  overruling 
the  objection  of  defendant  to  the  following  ques 
tion  propounded  to  the  witness,  Jose  M.  Trigo, 
Did  you  get  a  lawyer;  I  ask  if  you  did,  in  pursu 
ance  to  Mr.  Bancroft's  suggestion  or  instruction, 
get  a  lawyer  to  bring  that  suit  ? 

Twenty-ninth— The  Court  erred   in    overruling 

the  objection  of  defendant  to  the  following  ques- 

'34  tion  propounded  to  the  witness,  Jose   M.  Trigo: 

After  the  consultation  with  Mr.  Mitchell,  did  you 

report  to  Mr.  Bancroft  ? 

Thirtieth— The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  Jose  M.  Trigo;  What 
did  you  report  to  Mr.  Bancroft  ? 

Thirty -first— The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  ques- 
tion  propounded  to  the  witness,  Jose  M.  Trigo: 
State  all  that  was  said  in  reference  to  the  books, 
and  if  anything  was  said  concerning  Stone  ? 

Thirty-second— The  Court  erred  in  overruling 
the  objection  of  defendant  to  the  following  ques 
tion  propounded  to  the  witness,  Jose  M.  Trigo: 
State  whether  anything  was  said  concerning  Mr. 
Stone,  other  than  what  you  have  stated,  after  your 
arrival  in  San  Francisco,  with  reference  to  getting 


248 

736  him  out  of  the  business,  or  anything  of  that  char 
acter  ? 

Thirty-third— The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  Jose  M.  Trigo:  What 
was  that  conversation  ? 

Thirty-fourth— The  Court  erred  in  overruling 
the  objection  of  defendant  to  the  following  ques 
tion  propounded  to  the  witness,  Jose  M.  Trigo: 
State  whether  you  were  informed  by  defendant  as 
'*'  to  whether  any  business  of  the  History  Company 
had  been  transferred  to  the  California  Book  Com 
pany  ? 

Thirty-fifth —  The  Court  erred  in  overruling 
the  objection  of  defendant  to  the  following  ques 
tion  propounded  to  the  witness,  Jose  M.  Trigo  : 
Who  caused  that  book  to  be  written — Resources 
and  Probabilities  of  Mexico  ? 

Thirty-Sixth-  The  Court  erred  in  overruling  the 
718  °bjection  of  defendant  to  the  offering  in  evidence 
of  a  letter  written  by  the   witness,    George    H. 
Morrison  to  defendant. 

Thirty -Seventh — The  Court  erred  in  overruling 
the  objection  of  defendant  to  the  fol 
lowing  question  propounded  to  the  witness, 
George  H.  Morrison :  I  will  ask  you  if  it  is  not 
the  fact,  that  while  Mr.  Boyns  was  an  employee 
of  the  History  Company,  between  September, 


249 

739  1889>  and  March,  1890,  at  the  History  Com 
pany's  office,  in  the  City  and  County  of  San 
Francisco,  you  did  not  point  to  Mr.  Stone  and 
say  to  him  (Boyns),  "  That  man  is  a  snake  in  the 
grass,  he  is  a  bad  man,  look  out  for  him,  have 
nothing  to  do  with  him  "  or  words  to  that  effect  ? 
Thirty-eighth — The  Court  erred  in  overruling 
the  objection  of  defendant  to  the  following  ques 
tion  propounded  to  the  witness,  George  H.  Mor 
rison  :  Do  you  remember  having  said  to  Mr.  S. 

?*  B.  Moore,  at  the  place  I  have  named  in  the  His 
tory  Company's  office,  along  about  July,  1889, 
that  Mr.  Stone  just  the  same  as  robbed  him  by 
discriminating  against  him  in  the  allowance  of 
commission,  and  that  it  was  just  the  same  as  tak 
ing  money  out  of  his  pocket,  or  words  to  that 
effect  ? 

Thirty -ninth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 

741  propounded  to  the  witness,  W.  C.  Boyns  :  State 
whether  you  had  any  conversation  with  Mr.  Mor 
rison  in  the  month  of  September,  or  at  any  other 
time,  between  the  month  of  September,  1889,  and 
March,  1890,  have  a  conversation  in  which  Mor 
rison  said,  pointing  to  Stone,  "  That  man  is  a 
snake  in  the  grass,  a  bad  man,"  or  words  to  that 
effect  ? 


250 

743  Fortieth — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  S.  B.  Moore  :  State 
whether  or  not  you  heard  Mr.  Morrison,  at  the 
History  Company's  office,  in  the  City  and  County 
of  San  Francisco,  in  the  month  of  September, 
1889,  or  at  any  other  time  between  that  and  the 
first  of  March  of  the  following  year,  say  to  you 
that  Mr.  Stone  had  as  good  as  robbed  you  in  dis 
criminating  against  you  in  commission,  and  that 

7A1 

it  was  equivalent  to  robbery,  or   words  to  that 
effect  ? 

Forty-  first — The  Court  erred  in  overruling  the 
objection  of  defendant  to  the  following  question 
propounded  to  the  witness,  N.  J.  Stone  :  State 
whether  you  paid  that  to  him,  or  not  ? 

Forty-second — The  Court  erred  in  refusing  to 
submit  to  the  jury  the  following  special  issue, 
requested  by  defendant :  Were  the  services 
claimed  to  have  been  performed  by  the  plaintiff 
rendered  for  the  History  Company,  or  for  the 
defendant. 

Forty-third — The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit : 

"  If  you  find  from  the  evidence  that  plaintiff 
engaged  in  any  business  or  occupation,  it  must 
appear  it  was  of  the  character  specified  and  pro 
hibited  in  the  agreement ;  otherwise,  it  cannot  be 


25' 

745  regarded  as  a  breach  of  said  agreement,  or  an  act 
prohibited  thereby." 

Forty-fourth-  The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit  : 

"  If  you  find  from  the  evidence  that  the  said 
N.  J.  Stone  performed  the  services  required  of 
him  by  said  contract,  or  that  he  was  willing  and 
ready  at  the  time,  and  has  continued  willing  and 
ready,  and  in  the  manner  required  by  said  agree 
ment,  to  perform  said  services,  but  was  prevented 
from  doing  so  by  the  defendant,  or  under  his 
directions,  you  should,  find  in  favor  of  the 
plaintiff." 

Forty-fifth — The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit : 

"  You  are  instructed  that  the  plaintiff  if  pre 
vented  from  performing  the  services  prescribed  by 
said  contract  by  the  defendant,  had  the  right  to 
engage  in  any  occupation  or  business  not  prohib- 
ited  by  the  terms  of  said  contract,  and  to  earn  as 
much  money  as  he  could  in  such  occupation  or 
business.  The  only  effect  of  engaging  in  such 
occupation  or  business  would  be,  that  whatever 
he  earned,  should  be  deducted  from  the  amount 
of  the  salary  claimed  in  this  action." 

Forty-sixth— The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit : 


252 

748  "  There  is  testimony  tending  to  show  that  the 
plaintiff  was  not  discharged  from  employment 
under  said  agreement,  either  by  the  defendant 
or  by  the  History  Company.  Under  this  state 
of  facts,  the  plaintiff  was  simply  bound  to  hold 
himself  in  readiness  to  perform  such  services  as 
may  have  been  required  of  him  by  the  said  de 
fendant  or  the  History  Company.  If  you  find 
from  the  evidence,  that  he  was  not  required  or 
allowed  by  either  the  said  History  Company  or 

'  the  said  defendant  to  perform  any  services,  but 
held  himself  in  readiness  to  execute  the  contract, 
in  accordance  with  its  terms,  such  readiness  to 
perform  is  equivalent  to  performance." 

Forty-seventh— The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit: 

"  It  is  alleged  in  the  complaint  and  admitted 
by  the  defendant  in  his  answer,  that  the  salary 
sued  for  by  the  plaintiff  has  not  been  paid;  that  is 

« co  to  say,  it  is  admitted  in  the  answer  that  the  sal 
ary  has  not  been  paid  since  the  first  day  of  July, 
1892.  If  you  find  from  the  evidence  that  the  de 
fendant,  either  by  himself  or  in  conjunction  with 
others,  prevented  the  plaintiff  from  discharging 
the  duties  required  of  him  under  the  said  contract, 
the  defendant  cannot  complain  of  the  non-per 
formance  of  acts  or  duties  which  he  himself  pre 
vented;  and  the  plaintiff  in  such  case,  and  in  so 


253 

751  far  as  he  was  prevented  from  performing  by  the 
acts  of  the  defendant,  is  entitled  to  the  salary 
mentioned  in  the  complaint,  the  same  as  if  all  the 
duties  required  by  said  contract  had  been  per 
formed." 

Forty '-eight— -The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit: 

"  The  Court  instructs  the  jury  as  a  matter  of 
law,  that  where  two  parties  enter  into  a  lawful 

contract  upon  sufficient  consideration,  and  one  of 

7  ^2 

/0     the  parties  is  ready  and    willing  to  perform  and 

makes  preparation  and  offers  to  perform  on  his 
part,  but  is  prevented  from  performing  by  the 
other  party,  the  party  so  ready  and  willing  to 
perform  can  recover  all  damages  suffered  by  him 
by  reason  of  the  default  of  the  other  party." 

forty-ninth— The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit: 

"  The  Court  instructs  the  jury  that  to  entitle 
the  plaintiff  to  recover  in  this  case,  he  must  prove 
by  a  preponderence  of  evidence  the  contract  sub 
stantially  as  alleged  in  the  declaration,  and  also 
the  breach  of  the  contract  as  therein  alleged  and 
charged,  and  unless  he  has  done  so,  the  jury 
should  find  for  the  defendant." 

Fiftieth— The  Court  erred  in  giving  to  the  jury 
the  following  instruction,  to  wit: 


254 

754  "  Before  any  party  to  an  obligation  can  require 
another  party  to  perform  any  act  under  it,  he 
must  fulfill  all  conditions  precedent  thereto  im 
posed  upon  himself,  and  must  be  able  and  offer  to 
fulfill  all  conditions  concurrent  so  imposed  upon 
him  on  the  like  fulfillment  by  the  other  party." 

Fifty-first- --The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit : 

"  When  one  party  offers  to  fulfill  his  part  in  a 

concurrent  obligation,  and    the  other  refuses  or 

7SS 

neglects  to  perform  his  part,  he  who  is  ready  and 

offers  has  fulfilled  his  engagement,  and  may  main 
tain  an  action  for  the  default  of  the  other." 

Fifty-second — The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit: 

"For  the  breach  of  an  obligation  arising  from 
contract,  the  measure  of  damages  is  the  amount 
which  will  compensate  the  party  aggrieved  for  all 
the  detriment  proximately  caused  thereby,  or 
which,  in  the  ordinary  course  of  things,  would  be 
likely  to  result  therefrom." 

Fifty-third — The  Court  erred  in  giving  to  the 
jury  the  following  instruction,  to  wit: 

"The  detriment  caused  by  the  breach  of  an 
obligation  to  pay  money  only,  is  deemed  to  be  the 
amount  due  by  the  terms  of  the  obligation,  with 
interest  thereon." 


255 

757  Fifty-fourth — The  Court  erred  in  refusing  to 
give  to  the  jury  the  following  instruction 
requested  by  defendant,  to  wit : 

"If  you  find  from  the  evidence  that  after  the 
execution  of  the  written  agreement  set  out  in  the 
complaint,  a  corporation  called  the  History  Com 
pany  was  formed ;  that  defendant  turned  over  or 
transferred  to  that  corporation  the  property  men 
tioned  in  the  agreement  and  caused  to  be  issued 
and  delivered  to  the  plaintiff,  certificates  repre- 

'*  senting  one-tenth  of  the  capital  stock,  then  I 
instruct  you  that  said  agreement  was  fully  per 
formed  by  the  defendant." 

Fifty-fifth— The  Court  erred  in  refusing  to  give 
to  the  jury  the  following  instruction  requested  by 
defendant,  to  wit : 

"  You  are  instructed  that  the  written  agree 
ment  set  forth  in  the  complaint  does  not  provide 
that  the  salary  of  plaintiff  shall  be  paid  by  defend- 

759  ant" 

Fifty-sixth — The  Court  erred     in    refusing    to 

give    to    the    jury    the    following    instruction, 
requested  by  defendant,  to  wit : 

"  If  the  corporation,  the  History  Company  was 
formed  and  the  property  mentioned  in  the  agree 
ment  turned  over  to  it,  and  one-tenth  of  the  stock 
issued  and  delivered  to  plaintiff,  and  plaintiff 
acted  as  and  became  the  manager  of  the  corpora- 


760  tion,  then  I  instruct  you  that  if  plaintiff  has  any 
claim,  it  is  against  the  History  Company  and  not 
against  defendant." 

Fifty-seventh— The  Court  erred  in  refusing  to 
give  to  the  jury  the  following  instruction 
requested  by  defendant,  to  wit : 

"This  is  an  action  to  recover  for  services  ren 
dered  by  plaintiff  and  in  order  to  find  for  the 
plaintiff,  you  must  find  that  he  actually  rendered 

the  services  for  which  he  sues.     In  this  action  it 

761 

'  is  not  enough  for  him  to  show  that  he  was  pre 
vented  from  performing  the  service." 

Fifty-eighth — The  Court  erred  in  refusing  to 
give  to  the  jury  the  following  instruction 
requested  by  defendant,  to  wit : 

"If  you  find  that  plaintiff  was  not  dismissed 
or  discharged  from  the  employment,  but  that  he 
quit  said  employment  on  account  of  the  treat 
ment  to  which  he  was  subjected,  then  I  instruct 
762  vou  ^ia^  tf1*8  was  an  abandonment  of  the  employ 
ment  by  him  and  that  he  cannot  recover  except 
for  services  rendered  before  such  abandonment." 

Fifty -ninth— The  Court  erred  in  refusing  to 
give  to  the  jury  the  following  instruction 
requested  by  defendant,  to  wit : 

"  This  is  not  an  action  to  recover  damages  for 

o 

breach  of  the  contract  set  out  in  the  complaint, 
it  is  to  recover  for  services  claimed  to  have  been 


257 

763  rendered  under  that  contract  and  it  is  therefore 
necessary  in  order  to  find  for  plaintiff,  to  find  that 
he  actually  rendered  the  service." 

Sixtieth — The  Court  erred  in  refusing  to  give 
to  the  jury  the  following  instruction  requested  by 
defendant,  to  wit : 

"  The  remedy  of  an  employee  who  is  prevented 
from  performing  service  is  not  an  action  for  wages 
but  he  should  sue  for  damages  for  the  breach  of 
his  contract." 

'  ^  Sixty-first —  The  Court  erred  in  refusing  to 
give  to  the  jury  the  following  instruction 
requested  by  defendant,  to  wit : 

"  I  instruct  you  that  defendant  is  not  bound 
by  any  declaration  by  any  officer  of  the  History 
Company  unless  such  declaration  was  made  by 
his  direction." 

Sixty-second — The  Court   erred  in   refusing  to 
give    to    the    jury     the    following     instruction 
76^  requested  by  defendant,  to  wit : 

"  If  you  find  from  the  evidence  that  after  the 
making  of  the  agreement  set  out  in  the  com 
plaint,  the  plaintiff  entered  into  or  engaged  in, 
directly  or  indirectly,  any  other  mercantile  or 
manufacturing  business  then  I  instruct  you  that 
when  he  so  entered  into  or  engaged  in  such  busi 
ness,  he  violated  the  agreement. 

E.  J.  McCUTCHEN, 
Attorney  for  Defendant. 


766  STIPULATION. 

It  is  hereby  stipulated  that  the  above  and  fore 
going  be  settled  and  allowed  as  the  statement 
of  the  case  on  motion  for  new  trial  in  the  above 
entitled  action. 

Dated  November  27,  1894. 
REDDY,  CAMPBELL  &  METSON, 

Attorneys  for  Plaintiff. 
E.  J.  MoCUTCHEN, 
Attorney  for  Defendant. 


CERTIFICATE  OF  JUDGE. 

The  foregoing  having  been  agreed  to  by  the 
respective  parties  to  the  above  entitled  action,  as 
the  statement  of  the  case  on  motion  for  new 
trial,  the  same  is  hereby  settled  and  allowed. 

Dated  January  10,  1895. 

Jos.  P.  JONES,  Judge. 

[Endorsed:]  Filed  this  10th  day  of  January, 
1895. 

F.  L.  GLASS,  Clerk. 


ORDER  DENYING   MOTION  FOR   NEW 
TRIAL. 

[Title  of  Court  and  Cause.] 

MONDAY,  February  18,  1895 
Court  met  at  10  o'clock  A.  M. 


259 

769       Present,  Hon.   Jos.  P.    Jones,  Judge ;    R.  R. 
Veale,  Sheriff;  F.  L.  Glass,  Clerk. 

On  reading  the  stipulation  of  counsel  on  file 
herein  the  motion  of  defendant  for  a  new  trial  of 
this  cause  is  submitted  to  the  Court  for  decision 
without  argument,  and  the  Court  being  fully  ad 
vised  in  the  premises  it  is  ordered  that  the  said 
motion  for  a  new  trial  be  and  the  same  is  hereby 
denied. 


770 


NOTICE  OF  APPEAL. 

(Title  of  Court  and  Cause.) 

You  will  please  take  notice  that  the  defendant 
in  the  above  entitled  action  hereby  appeals  to  the 
Supreme  Court  of  the  State  of  California,  from 
the  judgment  therein  entered  in  the  said  Superior 
Court  on  the  24th  day  of  March,  1894,  in  favor 
of  the  plaintiff  in  said  action  and  against  said  de- 
77  *  fendant,  and  from  the  whole  thereof;  and  also 
from  the  order  denying  said  defendant's  motion 
for  new  trial,  made  and  entered  in  the  minutes  of 
said  Court  the  18th  day  of  February,  1895. 
Dated,  February  28,  1895. 

E.  J.  McCUTCHEN, 
Attorney  for  Defendant. 


26o 

•772  To  the  Clerk  of  the  said  Superior  Court,  and  to 
the  plaintiff  in  the  above  entitled  action,  and 
Reddy,  Campbell  &  Metson,  his  attorneys. 

[Endorsed:]     Service  of  a  copy  of  the  within 
.  JJotice  of  Appeal  is  hereby  admitted    this  28th 
day  of  February,  1895. 

REDDY,  CAMPBELL  &  METSON, 

Attorneys-  for  Plaintiff. 
Filed  February  28,  1895. 

F.  L.  GLASS,  Clerk. 

773 


STIPULATION. 

We,  the  undersigned,  the  attorneys  for  the  re 
spective  parties  herein,  do  hereby  stipulate  that 
the  above  and  foregoing  are  correct  copies  of  the 
Judgment  Roll  and  Statement  of  the  Case,  used 
on  the  hearing  of  the  Motion  for  New  Trial  and 

Notice  of  Appeal   in  the  above-entitled  action, 

774 

and  on  file  in  said  cause,  and  of  the  order  denying 

defendant's  motion  for  new  trial  made  and  entered 
in  the  minutes  of  the  Court  on  the  18th  day  of 
February,  1895;  that  the  same  are  true  and  cor 
rect,  and  that  they  shall  constitute  the  transcript 
on  appeal  herein. 

We  further  certify  that  a  sufficient  undertaking 
on  appeal  in  due  form  of  law  was  on  the  4th  day 


26l 

775  of  March,  1895,  duly  filed   in   said   cause  in  the 
office  of  the  Clerk  o£  said  Court. 

Dated,  June  7^1895.  j 


Attorneys  for  Plaintiff  and  Respondent. 


Attorney  for  Defendant  and  Appellant.    ] 


Service  of  a  copy  of  the  within  Transcript  on 

Appeal  is  hereby  admitted  this 

day  of  May,  1895. 

Attorneys  for  Respondent. 


San  Francisco.    No.  171. 


IN    THE 


^TT 

OUl   LV 


COURT 


OK   THK 


STATE  OF  CALIFORNIA. 


N.    J.    STONE, 

Plaintiff'  and  Respondent, 

ys. 

H.    H.    BANCROFT, 

Defendant  and  Appellant. 

Appellant's  Points  and  Authorities, 


EDWARD  J.  McCuTCHEN, 

Attorney  for  Appellant. 
REDDY,  CAMPBELL  &  METSON, 

Attorneys  for  Respondent. 


Filed  this... day  of  November,  A.  D.  1895. 

T.  H.    WARD,   Clerk, 


Deputy  Clerk. 


THE  SUPREME  COURT 


STATE  OF  CALIFORNIA. 


N.  J.  STONE, 

Plaintiff  and  Respondent, 

vs. 
H.  H.  BANCROFT, 

Defendant  and  Appellant. 


APPELLANT'S  POINTS  AND  AUTHORITIES. 

The  action  is  to  recover  for  services  claimed  to 
have  been  rendered  by  plaintiff  for  defendant. 

The  complaint  alleges  the  execution  by  plaintiff 
and  defendant  of  the  agreement  hereinafter  set 
forth;  that  plaintiff  has  honestly  and  faithfully 
performed  all  of  the  terms  and  conditions  thereof 
on  his  part;  "that  defendant  has  failed  and  neg 
lected  to  perform  the  conditions  upon  his  part  to 
be  performed,  and  has  failed,  neglected  and  re 
fused  to  pay  or  cause  to  be  paid  to  plaintiff  the 
*  salary  mentioned  in  said  agreement,  at  the  rate  of 
three  hundred  and  fifty  dollars  per  month,  since 
the  1st  day  of  July,  1892." 

The  answer  denies  that  plaintiff  has  performed, 


or  that  defendant  has  failed  to  perform,  the  con 
tract,  and  avers  that  defendant  has  performed  all 
of  the  conditions  on  his  part  to  be  performed; 
admits  that  defendant  has  not  paid  the  salary  men 
tioned  in  the  contract,  and  avers  that  he  is  under 
no  obligation  to  pay  it.  The  answei  further  avers 
that  the  History  Company  mentioned  in  the  agree 
ment  was  incorporated  under  the  laws  of  Califor 
nia  on  the  23d  day  of  September,  1886,  and  that 
immediately  after  its  incorporation  defendant 
transferred  to  it  all  of  the  property  mentioned  in 
the  agreement;  that  from  the  date  of  its  incorpor 
ation  said  History  Company  has  carried  on  and 
conducted  the  business  mentioned  in  the  agree 
ment,  and  defendant  has  had  nothing  to  do  with 
said  business  except  as  an  officer  of  said  corpora 
tion;  that  from  the  date  of  incorporation  until 
the  1st  day  of  July,  1892,  the  plaintiff  acted  in 
the  capacity  of  general  manager  of  the  company, 
but  that  he  has  not  at  any  time  since  the  date  of 
the  agreement  performed  for  or  rendered  to  de 
fendant  or  to  said  corporation  any  service  what 
ever.  The  answer  further  avers,  that  during  the 
time  for  which  the  plaintiff  seeks  to  recover  com 
pensation  he  was  engaged  in  carrying  on  and  con 
ducting  for  himself  and  other  persons,  and  in 
opposition  to  the  History  Company,  a  business  of 
the  same  kind  and  character  as  that  carried  on  by 
said  company. 


Statement    of    the    case    as   made    by   the 

plaintiff. 

.  > 

Confining  ourselves  to  the  plaintiff's  testimony 
the  following  is  a  fair  statement  of  the  facts: 

Prior  to  May,  1886,  defendant  was  engaged  in 
the  publication  and  sale  of  historical  works  and 
other  literary  publications  and  was  carrying  on 
business  under  the  name  of  Bancroft's  Works  De 
partment  of  A.  L.  Bancroft  &  Co.,  and  was  the 
owner  of  the  plates,  paper,  stock,  money,  out 
standing  accounts,  and  other  property  belonging 
to  said  business.  For  a  long  time  prior  to  May, 
1886,  the  plaintiff  had  been  employed  to  manage 
said  business  and  during  that  month  the  parties 
made  an  agreement  which  on  August  20,  1886, 
was  reduced  to  writing.  The  agreement  was  in 
these  words: 

"  This  agreement  made  in  San  Francisco,  Cali- 
u  fornia,  by  H.  H.  Bancroft  and  N.  J.  Stone,  wit- 
"  nesseth:  That  in  consideration  of  the  valuable 
"  services  done  by  the  said  Stone  in  conducting 
"  the  publication  and  sale  of  the  historical  works 
"  of  the  said  Bancroft,  the  business  formerly  being 
"  conducted  as  the  Bancroft's  Works  Department 
"  of  A.  L.  Bancroft  &  Co.,  but  now  being  done 
"  and  shortly  to  be  incorporated  under  the  laws 
"  of  California  as  the  History  Company,  the  said 
"  Bancroft  hereby  sells  and  assigns  to  the  said 
u  Stone  a  one-tenth  interest  in  the  said  History 


"  Company,  plates,  paper,  stock,  money,  outstand- 
"  ing  accounts,  or  other  property  of  said  com- 
"  pany,  upon  the  following  conditions: 

"  The  said  N.  J.  Stone  is  to  devote  his  whole 
"  time  and  best  energies,  so  far  as  his  health  and 
"  strength  shall  permit,  for  a  period  of  not  less 
"  than  ten  years  from  the  date  of  this  agreement, 
"  to  the  publication  and  sale  of  the  historical 
"  works  of  H.  H.  Bancroft,  and  of  such  other 
"  works,  and  conduct  such  other  business  as  may 
"  be  from  time  to  time  taken  up  and  entered  into 
"  by  said  History  Company;  and  the  said  Stone 
"  agrees  not  to  enter  into  or  engage  in,  directly 
"  or  indirectly,  any  other  mercantile  or  manu- 
"  facturing  business,  or  to  any  other  business  or 
"  occupation  which  shall  in  any  wise  absorb  his 
"  mind  and  strength,  or  interfere  with  his  in- 
"  terest  or  efforts  on  behalf  of  the  said  History 
"  Company  during  the  said  term  of  ten  years. 

"  Upon  the  incorporation  of  the  History  Com- 
"  pany  one-tenth  of  the  whole  number  of  shares 
"  shall  be  issued  and  delivered  to  the  said  N.  J. 
"  Stone;  but  should  the  said  Stone  fail  in  any- 
"  wise  to  carry  out  this  agreement,  or  any  part 
"  thereof,  in  its  full  letter  and  spirit,  then  the  said 
"  one-tenth  interest  in  the  said  History  Company 
"  shall  be  forfeited  and  revert  to  the  said  H.  H. 
"  Bancroft;  provided,  and  it  is  distinctly  under- 
"  stood  and  agreed,  that  in  case  of  the  death  of 


"  the  said  N.  J.  Stone  before  the  expiration  of 
"  five  years  from  the  date  of  this  agreement,  the 
"  said  Stone  having  fulfilled  all  the  conditions  of 
"  this  agreement  up  to  that  time,  then  one-half  of 
"  the  said  one-tenth  interest  of  the  said  Stone  in 
"  the  History  Company  shall  go  to  his  heirs,  arid 
"  be  their  property  unconditionally;  and  in  the 
"  event  of  the  death  of  the  said  Stone  at  any 
"  time  after  the  expiration  of  five  years  from  the 
"  date  of  this  agreement,  the  terms  hereof  having 
"  been  fully  complied  with,  then  the  whole  of 
"  the  said  one-tenth  interest  shall  belong  to  his 
"  heirs  unconditionally. 

"  The  salary  of  the  said  Stone  shall  be  $350  a 
"  month.  The  copyright  of  the  said  historical 
"  works  belongs  exclusively  to  the  said  Bancroft, 
"  and  shall  be  fifty  cents  a  volume  for  the  History 
"  and  Diaz,  and  twenty  cents  on  the  little  history 
"  of  Mexico. 

"  Signed  in  San  Francisco,  the  twentieth  day 
"  of  August,  1886. 

"  H.  H.  BANCKOFT, 
"  N.  J.   STONE." 

Between  May,  1886  and  the  23d  day  of  Sep 
tember,  1886,  plaintiff  arid  defendant  carried  on 
the  business  referred  to  in  the  agreement  under 
the  name  History  Company,  the  plaintiff  own 
ing  one-tenth  of  said  business  and  the  defendant 
the  remaining  nine-tenths.  The  salary  of  plaintiff 


6 

was  paid  out  of  the  moneys  belonging  to  both  the 
parties  and  charged  as  an  expense  of  the  busi 
ness.  (Trans.,  folio  140.)  On  the  23d  day  of 
September,  1886,  the  parties  formed  a  corporation 
under  the  laws  of  California,  called  History  Com 
pany,  to  which  was  transferred  all  of  the  property 
referred  to  in  the  agreement,  and  from  its  forma 
tion  until  the  commencement  of  this  action  it 
carried  on  the  business  previously  carried  on  by 
plaintiff  and  defendant.  Plaintiff  admits  that 
defendant  has  performed  the  agreement  on  his 
part  unless  the  payment  of  the  salary  is  imposed 
by  the  agreement  upon  defendant  individually. 
(Trans.,  folios  234  and  235).  Immediately  after 
the  formation  of  the  corporation  the  plaintiff  re 
ceived  certificates  representing  one-tenth  of  the 
capital  stock  thereof.  From  the  date  of  the  form 
ation  of  the  corporation  until  May,  1892,  the 
plaintiff  was  a  director  and  vice-president  thereof, 
and  from  the  date  of  the  formation  until  July, 
1892,  he  acted  as  the  manager  of  its  business.  A 
by-law  of  the  History  Company  adopted  imme 
diately  after  its  incorporation  and  to  which  the 
plaintiff  assented  in  writing,  fixed  the  salary  of 
the  vice-president  at  three  hundred  and  fifty  dol 
lars  per  month.  At  all  the  times  after  the  forma 
tion  of  the  corporation  the  salary  of  the  plaintiff 
was  paid  to  him  by  the  treasurer  thereof,  who  was 
under  his  orders.  The  salary  paid  to  the  plaintiff 


was  treated  as  one  of  the  expenses  of  the  business 
and  was  always  entered  upon  the  books  of  the 
company  as  such  an  expense,  and  all  of  the  profits 
which  were  divided  either  in  the  shape  of  divi 
dends,  or  in  any  other  way,  were  the  net  profits 
after  the  deduction  of  all  expenses,  including  the 
plaintiff's  salary.  (Trans.,  folio  197.)  It  is  ad 
mitted  by  the  plaintiff  that  his  salary  was  never 
charged  to  or  paid  by  defendant  individually. 
(Trans.,  folio  139.)  The  arrangement  at  the 
time  it  was  made,  as  understood  by  the  plaintiff, 
was  that  he  was  to  have  ten  per  cent,  of  the  en 
tire  business  and  ten  per  cent,  of  the  net  profits 
after  all  expenses  were  paid,  including  his  own 
salary.  (Trans.,  folio  140.) 

Plaintiff  received  the  salary  of  three  hundred 
and  fifty  dollars  a  month  from  the  History  Com 
pany  until  the  end  of  June,  1892.  Before  the 
commencement  of  this  action  he  commenced  two 
suits  against  the  History  Company,  in  each  of 
which  he  sought  to  recover  three  hundred  and 
fifty  dollars,  the  first  being  for  services  rendered 
as  its  manager  during  the  month  of  July,  1892, 
and  the  second  for  services  rendered  as  its  man 
ager  during  the  month  of  August,  1892.  He  sub 
sequently  brought  this  action  to  recover  for 
services  alleged  to  have  been  actually  performed 
between  the  1st  day  of  July,  1892,  and  the  date 
when  the  complaint  was  filed,  a  period  of  fourteen 
months,  ending  August  31,  1893. 


8 

It  is  not  claimed  by  the  plaintiff  that  during  all 
of  the  time  for  which  he  seeks  to  recover  from  the 
defendant  for  services  rendered,  he  was  actually 
engaged  either  in  the  service  of  the  defendant  or 
the  service  of  the  History  Company.  It  is  claimed 
that  some  time  in  the  early  part  of  1892,  the  de 
fendant  determined  to  prevent  the  plaintiff  from 
performing  his  duties  as  manager  of  the  business 
of  the  corporation,  and  that  after  June,  1892,  he 
was  not  able,  by  reason  of  the  interference  of  the 
defendant  and  those  under  him,  to  perform  the 
duties  of  that  position.  He  says  his  desk  was 
moved  from  place  to  place,  and  that  he  was  sub 
jected  to  every  indignity  that  one  rnan  could  in 
flict  upon  another;  that  his  desk  was  placed  in  a 
draught,  and  he  notified  the  secretary  of  the  cor 
poration  that  he  could  not  remain  unless  its  posi 
tion  was  changed.  He  did  remain,  however,  for 
a  long  time  after  he  had  been  so  badly  treated 
(Trans.,  folio  204),  and  says  emphatically  he  was 
never  dismissed  or  discharged  (Trans.,  folio  236). 
Plaintiff  chaims  to  have  visited  the  office  of  the 
company  every  day  during  the  month  of  July, 
1892;  occasionally,  but  not  very  often,  during 
August  and  September,  1892;  that  he  was  there 
during  October,  but  did  not  do  much  of  anything; 
that  he  was  there  part  of  the  time  in  November 
and  most  of  the  time  during  December.  He  went 
there  every  day  during  January,  1893,  and  every 


9 

day  during  February,  1893,  until  he  served  a 
notice  upon  Borland,  the  secretary  and  treasurer 
of  the  History  Company,  and  said  he  was  ready 
to  work  (Trans.,  folios  149  to  152). 

He  made  a  demand  on  the  treasurer  of  the  cor 
poration  for  the  salary  which  he  claimed  to  be  due 
subsequent  to  June,  1892,  but  never  made  any 
demand  on  defendant  (Trans.,  folio  152).  When 
he  addressed  Dorland  concerning  his  services  he 
addressed  him  as  secretary  and  treasurer  of  the 
corporation,  and  Dorland  answered  him  in  that 
capacity  (Trans.,  folio  170). 

The  plaintiff  says  he  gave  the  notices  to  Dor- 
land  in  December,  1892,  and  January,  1893 
(Trans.,  folio  101).  He  claims  to  have  been  at 
the  office  of  the  History  Company  nearly  every 
day  up  to  the  time  of  the  demand  made  upon 
Dorland,  and  after  that  time  he  engaged  in  other 
business  (Trans.,  folio  169).  During  the  months 
of  May,  June  and  July,  1893,  he  admits  he  was 
giving  his  attention  to  the  publication  of  a  work 
called  "  Femina,"  in  which  he  had  acquired  an 
interest  (Trans.,  folio  161).  For  each  of  those 
three  months  he  recovered  in  this  action  three 
hundred  and  fifty  dollars  for  services  alleged  in 
his  complaint  to  have  been  rendered  to  defendant. 
In  the  publication  of  the  work  called  "  Femina. " 
he  was  associated  with  one  Miller,  each  of  them  be 
ing  equally  interested  in  the  business  (Trans.,  folia 


10 

162).  He  says  he  considered  that  during  the  time 
he  was  engaged  in  business  with  Miller  the  His 
tory  Company  was  entitled  to  call  upon  him  to 
perform  services  as  manager  for  it,  and  that  it  was 
understood  between  him  and  Miller  that  he  would 
make  no  arrangement  by  which  he  would  not  be 
subject  to  the  call  of  the  History  Company.  He 
claims  to  have  considered  all  the  time  he  was  with 
Miller  that  the  contract  set  out  in  the  complaint 
was  in  full  force  and  effect,  and  that  the  History 
Company  was  entitled  to  call  upon  him  at  any  time 
(Trans.,  folio  168). 

On  the  21st  day  of  October,  1893,  the  plaintiff 
and  Miller  signed  and  executed  an  instrument  in 
writing,  in  which  they  declared  that  the  partner 
ship  existing  between  John  A.  Miller,  party  of  the 
first  part,  and  Nathan  J.  Stone,  party  of  the  sec 
ond  part,  under  the  firm  name  of  the  Femina 
Company,  was  that  day  dissolved  by  mutual  con 
sent.  The  execution  of  this  document  was  wit 
nessed  by  one  of  the  counsel  for  the  plaintiff. 

The  Femina  Company  had  an  office,  and  the 
plaintiff's  name  appeared  on  the  door  as  manager 
of  its  business  (Trans.,  folio  186).  That  company 
was  engaged  in  publishing  a  literary  work  and  the 
History  Company  was  engaged  in  publishing 
literary  works  (Trans.,  folio  387). 

The  only  object  in  calling  attention  to  these 
facts  in  this  statement  is,  to  emphasize  the  fact 


11 

that  the  Court  below,  in  this  action  to  recover  for 
services  alleged  to  have  been  rendered,  gave 
plaintiff  a  judgment  as  compensation  for  services 
claimed  to  have  been  rendered  by  him  for  a 
period  during  which,  by  his  own  admission,  he 
was  actually  engaged  in  conducting  a  rival  busi 
ness. 

I. 

The  demurrer  to  the  complaint  should  have  been 
sustained. 

A  demurrer  was  interposed  by  defendant  to  the 
complaint  in  which  it  was  claimed :  First,  that  it 
did  not  state  facts  sufficient  to  constitute  a  cause  of 
action;  and,  second,  that  it  was  ambiguous,  uncer 
tain  and  unintelligible  in  that:  (a)  it  did  not  appear 
whether  the  corporation  referred  to  in  the  agree 
ment  was  ever  formed;  (b)  that  it  did  not  appear 
what  services  were  performed  by  plaintiff,  and 
(c)  that  it  did  not  appear  whether  the  services,  if 
any,  performed  by  him  were  rendered  to  the  de 
fendant  or  to  the  History  Company. 

Separate  assignments  were  made  as  to  ambig 
uity,  uncertainty  and  unintelligibility. 

It  is  to  be  remembered  that  the  action  is  not  for 
the  breach  of  the  contract  and  that  the  complaint 
does  not  allege  any  damage,  but,  on  the  contrary, 
it  alleges  performance  of  the  agreement  for  which 
the  plaintiff  claims  a  stipulated  compensation. 

When  the  agreement  was  executed  defendant 


12 

was  the  owner  of  a  business  "then  being  done 
and  shortly  to  be  incorporated  under  the  laws  of 
California,"  under  the  name  of  History  Company, 
and  was  the  owner  of  all  the  property  belonging 
or  appertaining  thereto.  By  the  instrument  he 
"  sold  and  assigned  to  plaintiff  a  one-tenth  interest 
in  the  said  History  Company,  plates,  paper,  stock, 
money,  outstanding  accounts,  and  other  property 
of  said  company."  (Trans.,  folio  5.)  This  is  all 
defendant  did  or  agreed  to  do.  There  is  nothing 
executory  in  the  agreement  so  far  as  he  is  con 
cerned.  The  complaint  alleges  the  execution  of 
the  instrument  by  him,  which  is  equivalent  to  an 
allegation  that  at  that  date  he  transferred  and  sold 
to  plaintiff  a  one-tenth  interest  in  the  property 
mentioned,  and  from  that  time  forward  plaintiff 
became  and  was  jointly  interested  with  defendant 
in  the  business,  defendant  owning  nine-tenths  and 
plaintiff  one-tenth  thereof. 

Plaintiff,  upon  his  part,  agreed  to  devote  his 
whole  time  for  ten  years  after  the  date  of  the 
agreement  to  the  business  of  the  History  Company, 
and  that  during  that  time  he  would  not  engage  in 
any  manufacturing  business,  or  any  business  that 
would  interfere  with  his  interests  in  or  efforts  on 
behalf  of  said  History  Company. 

The  obligation  imposed  by  the  agreement  upon 
plaintiff  was  to  render  service,  not  to  the  defend 
ant,  but  to  the  History  Company,  and  when  he 


13 

alleges  that  he  has  performed  the  agreement  on  his 
part,  he  is  to  be  understood  as  saying  that  he  has 
rendered  to  the  History  Company  the  stipulated 
service.  This  service  must  have  been  rendered 
to  the  History  Company,  a  corporation,  or  to  a  co 
partnership  doing  business  under  that  name  and 
composed  of  plaintiff  and  defendant.  If  the  agree 
ment  was  so  far  executed  as  that  plaintiff  per 
formed  all  of  its  covenants  on  his  part,  the  parties 
must  have  carried  on  the  business  as  copartners, 
or  a  corporation  must  have  been  formed  to  which 
the  property  and  business  were  transferred.  If 
plaintiff  performed  any  part  of  the  agreement  be 
fore  a  corporation  was  formed,  then  it  necessarily 
follows  that  he  and  defendant  were  carrying  on 
the  business  of  the  History  Company  and  their 
relations  were  those  of  partners.  When  defend 
ant  executed  and  delivered  the  assignment  and 
transfer  to  plaintiff  the  latter  became  proprietor 
of  an  interest  in  a  going  business,  of  which  prior 
to  that  time  defendant  was  the  sole  owner.  The 
agreement  provided  for  a  continuance  of  the  busi 
ness,  to  which  the  plaintiff  was  to  devote  his  en 
tire  time  for  a  period  of  ten  years.  No  one  will 
seriously  contend  that  this  was  a  contract  of  em 
ployment  wherein  defendant  was  the  employer 
and  plaintiff  the  employee.  Defendant  did  not 
take  plaintiff  into  his  employment,  but  took  him 
into  the  business,  into  the  History  Company,  and 


14 

whereas  he  had  up  to  that  time  been  only  an  em 
ployee  of  the  defendant,  he  was  thenceforth  in 
terested  with  him  in  the  business;  in  other  words, 
was  his  partner. 

Defendant  did  not  undertake  to  pay  the  plaintiff 
the  salary  stipulated  in  the  agreement,  but  both 
plaintiff  and  defendant  agreed  that  plaintiff's 
salary  should  be  three  hundred  and  fifty  dollars 
per  month,  which  salary  was,  of  course,  to  be  paid 
by  the  History  Company.  It  will  hardly  be 
questioned  that  from  the  date  of  the  agreement 
the  parties  were  to  share  in  the  profits  and  losses 
of  the  business  in  proportion  to  their  respective 
interests. 

Section  2395  of  the  Civil  Code  defines  partner 
ship  thus:  "Partnership  is  the  association  of  two 
"  or  more  persons  for  the  purpose  of  carrying  on 
"  business  together  and  dividing  the  profits  be- 
"  tween  them."  The  agreement  in  this  case  ex 
pressly  stipulated  that  the  parties  were  to  carry  on 
business  together,  and  no  one  will  say  they  were 
not  to  divide  the  profits.  In  other  words,  the 
agreement  brings  them  clearly  within  the  provis 
ions  of  this  section  of  the  Civil  Code. 

It  may  be  suggested  that  the  agreement  does 
not  contain  any  express  provision  that  the  parties 
are  to  divide  the  profits  of  the  business.  In  Bloom- 
field  vs.  Buchanan,  13  Or.,  108,  it  was  held  that  it 
was  not  absolutely  necessary  in  order  to  create  a 


15 

partnership  that  the  word  "  partnership  "  should 
be  used,  "  or  any  express  mention  made  in  regard 
"  to  profit  or  loss,  *  *  *  and  it  is  not  neces- 
"  sary  that  there  should  be  an  express  stipulation 
"  between  partners  to  share  the  profit  and  loss,  as 
"  that  is  an  incident  to  the-  prosecution  of  their 
"  joint  business." 

In  Richards  vs.  Grinnell,  63  Iowa,  44,  Chief 
Justice  Rothrock  quotes  with  approval  the  follow 
ing  from  Parsons  on  Contracts:  "Where  parties 
"  agree  to  enter  into  an  association  for  the  purpose 
"  of  buying  or  selling  and  carrying  on  joint  busi* 
"  ness  indefinitely,  no  stipulation  for  dividing 
"  profit  and  loss  is  necessary,  as  that  is  an  incident 
"  to  the  prosecution  of  their  joint  business." 

It  seems  entirely  unnecessary  to  multiply  au* 
thorities  on  this  point.  As  has  been  suggested) 
the  portion  of  the  contract  providing  that  "the 
salary  of  the  said  Stone  shall  be  three  hundred 
and  fifty  dollars  a  month,"  did  not  impose  upon 
the  defendant  an  obligation  to  pay  that  sum  or  any 
sum,  but  simply  meant  that  out  of  the  business  in 
which  the  parties  were  about  to  engage  the  plaintiff 
should  receive  the  salary  agreed  upon  by  them. 
His  salary  was  one  of  the  expenses  of  the  business 
to  be  deducted  before  the  division  of  profits,  and 
hence  he  was  himself  to  contribute  one-tenth  of 
his  compensation. 

A  case  on  all  fours  with  the  one  at  bar  and  de- 


16 

cisive  of  the  question  now  under  discussion  is 
Weaver  vs.  Upton,  7  Iredell's  Law  (N.  C.),  458. 
The  opinion  is  short  and  we  quote  it  in  full: 

"  Weaver  and  Upton,  on  the  16th  of  Decem- 
"  ber,  1840,  leased  of  one  McKenzie  a  tract  of 
"  land  for  three  years  to  mine  for  gold;  the  rent 
"  was  to  be  one-sixth  part  of  the  gold  that  should 
"  be  obtained  by  the  lessees.  On  the  27th  of 
"  December,  1841,  the  lessees  entered  into  the 
"  agreement  under  their  seals,  mentioned  in  the 
"  case.  Upton  was  to  work  twenty  hands,  and 
"  Weaver  four  hands,  '  bearing  a  proportionable 
"  '  part  of  the  expense  attached  thereto.  The 
"  '  said  Upton,  of  the  first  part,  bargains  and  agrees 
"  '  to  give  me,  the  said  Weaver,  of  the  second 
"  *  part,  four  hundred  and  fifty  dollars  to  manage 
"  '  the  business,  which  I  agree  to  manage  accord- 
"  *  ing  to  the  best  of  my  judgment.'  It  seems  to 
"  us,  that  the  agreement  was  one  of  partnership; 
"  and  the  law  being  well  settled,  that  the  acting 
"  and  business  partner  is  never  entitled  to  claim 
"  pay  of  the  firm  for  his  services,  unless  he  stipu- 
"  lates  for  it  in  the  articles  of  copartnership  or 
"  otherwise;  the  parties  therefore  agreed,  that 
"  Weaver  should  manage  the  business,  and  Upton, 
"  the  other  partner,  agreed  to  give  him  $450  '  to 
"  manage  the  business.'  Weaver  was  to  bear  his 
"  proportion  of  the  expense  of  managing  and 
"  working  the  mine.  The  salary  of  the,  superin- 


"  tendent  was  a  part  of  the  expense  of  the  firm. 
"  And  the  firm  ought,  according  to  the  true  construc- 
"  tion  of  the  articles,  to  bear  this  expense  in  propor- 
"  tion  to  the  number  of  hands  each  partner  worked 
"  in  the  mine.  The  words  '  The  said  Upton  bar- 
"  gains  and  agrees  to  give  me,  the  said  Weaver, 
"  $450  to  manage  the  business,'  only  denoted 
*'  the  assent  of  Upton,  that  Weaver,  although  a 
"  partner,  should  be  paid  for  his  services  $450. 
"  The  parties  were  stipulating  concerning  the  part- 
"  nership  business,  and  the  terms  on  which  it  was  to 
"  be  carried  on;  and  among  others  that  Upton  bar- 
"  gained  and  agreed  to  let  Weaver  have  $450  for 
"  his  services  that  year.  It  seems  to  us  that  it 
"  would  be  against  justice  and  right,  to  construe 
"  the  covenant  to  be  an  agreement  by  Upton,  that 
"  he  would  pay  that  sum  out  of  his  own  pocket. 
"  We  think  that  it  was  an  item  in  the  expense 
"  account  of  the  firm  and  that  the  firm  should  pay 
"  it." 

In  the  Weaver  case  the  language  was  "  the  said 
Upton  bargains  and  agrees  to  give  me,  the  said 
Weaver,  $450  to  manage  the  business,"  while  in 
the  case  at  bar  the  language  is,  "  the  salary  of  said 
Stone  shall  be  $350  a  month."  From  what  has 
been  said,  it  necessarily  follows  that  the  plaintiff 
did  not  have  a  cause  of  action  against  the  defend 
ant  to  recover  the  salary  which  it  was  agreed  he 
should  receive,  and  hence,  the  general  demurrer 


18 

should  have  been  sustained.  The  special  demurrer 
was  likewise  well  taken.  If  the  services  claimed 
to  have  been  performed  by  the  plaintiff  were 
rendered  for  a  corporation  formed  by  the  parties, 
or  a  copartnership  consisting  of  the  parties,  then 
such  services  were  not  rendered  to  the  defendant, 
and  as  the  complaint  failed  to  show  to  whom  the 
service  was  rendered,  and  also  failed  to  show 
whether  or  not  a  corporation  had  been  formed,  it 
was  ambiguous,  uncertain  and  unintelligible  in  the 
particulars  specified  in  the  demurrer. 

II. 

The  plaintiff  did  not  perform  the  contract. 

Without  desiring  to  repeat  what  has  been  said 
in  relation  to  the  insufficiency  of  the  complaint, 
we  again  call  attention  to  the  fact  that  it  sets  forth 
a  cause  of  action  for  services  actually  performed 
by  plaintiff.  The  action  is  not  one  to  recover 
damages  for  breach  of  the  agreement.  No  damage 
is  alleged.  The  salary  of  the  plaintiff  was  paid  by 
the  History  Company  for  all  services  rendered  by 
him  to  and  including  the  end  of  June,  1892.  In 
this  action  he  recovered  judgment  for  services  al 
leged  to  have  been  rendered  from  July  1,  1892,  to 
September,  1893.  By  his  own  admission  he  did 
not  render  any  service  after  January,  1,  1893, 
and  little,  if  any,  subsequent  to  July,  1892.  Dur 
ing  a  large  part  of  the  year  1893  he  was  engaged 
in  other  business.  He  claims  to  have  notified  the 


19 

secretary  of  the  History  Company  in  December, 
1892,  and  January,  1893,  that  he  was  ready  to 
work,  and  the  theory  upon  which  he  recovered  in 
this  action  was  that  although  he  did  not  actually 
perform  the  services  alleged  in  his  complaint  to 
have  been  performed,  he  was  ready  and  willing 
to  perform;  that  performance  on  his  part  was  pre 
vented  by  defendant  and  that  readiness  to  per 
form  was  in  such  a  case  equivalent  to  performance. 
This  sounds  very  startling  but  is  nevertheless  true. 
In  this  case  the  allegation  of  actual  performance  is 
claimed  to  have  been  proven  by  showing  that 
there  was  no  performance.  The  action  here  is  for 
salary,  and  to  have  recovered  salary  plaintiff  should 
have  shown  performan-ce  of  the  service.  Assum 
ing  for  the  moment  that  defendant  agreed  to  pay 
the  salary,  he  was  not  liable  to  pay  it  except  upon 
performance  by  plaintiff.  One  who  has  been  hired 
for  a  term  is  entitled  to  recover  damages  from  the 
employer  if  prevented  by  the  latter  (without  good 
cause)  from  performing  the  service  contracted  for, 
but  an  employee  discharged  without  cause  before 
the  expiration  of  the  term  for  which  he  was  hired 
cannot  recover  wages  from  the  employer  lor  the 
time  intervening  between  the  date  of  his  dis-* 
charge  and  the  end  of  the  term  for  which  he  was* 
employed.  He  can  recover  wages  only  when  he 
has  actually  rendered  the  service  for  which  the 
wages  were  to  be  paid.  If  prevented  from  per- 


20 

forming  his  contract  of  service,  he  cannot,  al 
though  he  may  have  been  ready  and  willing  to 
perform,  recover  the  wages  agreed  to  be  paid,  but 
must  have  resort  to  an  action  for  damages  for  the 
breach  of  the  contract  of  hiring.  The  doctrine 
of  "  constructive  service  "  (and  it  was  upon  the 
supposed  soundness  of  that  doctrine  that  plaintiff 
recovered  in  the  Court  below)  has  been  exploded 
and  repudiated  by  the  courts  of  this  country  and 
England.  We  quote  the  following  from  Woods 
Law  of  Master  and  Servant,  page  254: 

"Formerly  there  is  no  question  but  that  a  ser- 
"  vant,  under  such  circumstances,  was  regarded 
"  as  entitled  to  hold  himself  in  readiness  to  per- 
"  form  his  contract,  and,  being  able,  ready  and 
"  willing  to  do  so,  was  entitled  to  recover  his 
"  wages  for  the  whole  term,  upon  the  ground  of 
"  constructive  service.  This  doctrine  had  its  ori- 
"  gin  in  a  decision  rendered  by  Lord  Ellenborough 
"  in  a  nisi  prius  case  tried  before  him.  In  that 
"  case  the  plaintiff  was  discharged  before  the 
"  termination  of  the  quarter  for  which  he  was 
"  employed,  and  in  an  action  for  his  wages  for  the 
"  entire  quarter,  Lord  Ellenborough  said,  that  '  as 
"  the  plaintiff  had  served  a  part  of  the  quarter,  and 
**  was  ready  and  willing  to  serve  for  the  residue, 
"  he  might,  in  contemplation  of  law,  be  consid- 
<l  ered  to  have  served  the  whole.'  This  doctrine 
"  has  been  adopted  in  numerous  English  cases 


21 

"  since,  which  it  will  not  be  profitable  to  notice 
"  here;  but  after  being  repudiated,  and  then 
"  again  adopted,  it  was  finally  exploded,  and  the 
"  doctrine  established  that  a  person  wrongfully 
"  discharged  could  not,  by  simply  holding  himself 
"  in  readiness  to  perform  his  contract,  be  regarded 
"  as  having  in  fact  performed  it,  and  thus  be  en- 
"  titled  to  sue  for  and  recover  his  wages  for  the 
"  entire  term,  but  that  he  must  be  restricted  in  his 
"  recovery  to  the  amount  of  his  actual  loss.  The 
"  action  in  such  cases  is  not  for  wages,  but  for 
"  damages  for  breach  of  the  contract.  It  cannot 
"  with  any  propriety  be  claimed  that  an  action  for 
"  wages  can  be  sustained  when  the  servant  has  in 
"  fact  rendered  no  service.  Such  a  doctrine  is  in 
"  defiance  of  the  meaning  of  the  term,  and  rests 
"  upon  no  solid  foundation,  either  in  principle  or 
"  policy.  Not  in  principle,  because  it  conflicts 
'*  with  the  doctrine  that  every  person  injured  by 
"  the  act  of  another  is  bound  to  use  ordinary  dili- 
"  gence  to  make  the  burden  as  light  as  possible, 
"  and  therefore  is  bound  not  to  hold  himself  in 
**  readiness  to  perform  the  contract,  but  to  use 
"  reasonable  efforts  to  secure  other  employment; 
"  not  in  accordance  with  sound  public  policy,  be- 
"  cause  it  encourages  indolence,  and  in  the  lan- 
"  guageof  Parke,  B.,  'such  a  doctrine,  if  sanctioned, 
"  would  be  of  pernicious  consequences.'  The  true 
"  rule,  which  is  generally  adopted  in  this  country, 


22 

"  is,  as  previously  stated,  that  such  actions  must  be 
"  for  damages  for  a  breach  of  contract." 

The  leading  case  on  the  subject  in  this  country 
is  Howard  vs.  Daly,  61  N.  Y.,  362.  After  citing 
a  large  number  of  American  and  English  cases  in 
which  the  doctrine  of  constructive  service  is  re 
pudiated,  it  is  said: 

"  These  cases  and  authorities  hold,  in  substance, 
"  that  if  a  servant  be  wrongfully  discharged,  he 
"  has  no  action  for  wages,  except  for  past  services 
."  rendered,  and  for  sums  of  money  that  have  be- 
"  come  due.  As  far  as  any  other  claim  on  the 
"  contract  is  concerned,  he  must  sue  for  the  injury 
"  he  has  sustained  by  his  discharge,  in  not  being 
"  allowed  to  serve  and  earn  the  wages  agreed 
"  upon.  *  *  *  This  doctrine  (constructive 
*•  service)  is,  however,  so  opposed  to  principle,  so 
"  clearly  hostile  to  the  great  mass  of  the  authori- 
"  ties,  and  so  wholly  irreconcilable  to  that  great 
"  and  beneficent  rule  of  law,  that  a  person  dis- 
"  charged  from  service  must  not  remain  idle,  but 
"  must  accept  employment  elsewhere  if  offered, 
"  that  we  cannot  accept  it.  If  a  person  discharged 
"  from  service  may  recover  wages,  or  treat  the 
"  contract  as  still  subsisting,  then  he  must  remain 
"  idle  in  order  to  be  always  ready  to  perform  the 
"  service.  How  absurd  it  would  be  that  one  rule 
"  of  law  should  call  upon  him  to  accept,  other  em- 
"  ployment,  while  another  rule  required  him  to 


23 

"  remain  idle  in  order  that  he  may  recover  full 
"  wages.  The  doctrine  of  '  constructive  service  ' 
"  is  not  only  at  war  with  principle,  but  with  the 
"  rules  of  political  economy,  as  it  encourages  idle- 
"  ness,  and  gives  compensation  to  men  who  fold 
"  their  arms  and  decline  service,  equal  to  those 
"  who  perform  with  willing  hands  their  stipulated 
"  amount  of  labor.  Though  the  master  has  com- 
"  mitted  a  wrong,  the  servant  is  not  for  one  mo- 
"  ment  released  from  the  rule  that -he  should 
"  labor;  and  no  rule  can  be  sound  which  gives 
"  him  full  wages  while  living  in  voluntary  idle- 
"  ness.  For  these  reasons,  if  the  plaintiff  was 
"  discharged  after  the  time  of  service  commenced, 
"  she  had  an  immediate  cause  of  action  for 
"  damages." 

In  James  vs.  Allen  County,  44  Ohio  St.,  228, 
this  question  was  presented  in  a  case  almost  ident 
ical  with  the  one  at  bar.  The  plaintiff  sued  to 
recover  wages  claimed  to  be  due  under  a  contract 
for  service  which  defendant  had  prevented  him 
from  performing.  The  Court  held  the  remedy 
of  plaintiff  was  an  action  for  damages,  and  after 
citing  a  number  of  cases,  said: 

"  The  decisions  in  these  cases  appear  to  rest 
"  upon  the  doctrine  of  '  constructive  service."  In 
"  several  of  them  it  is  adopted  in  words;  in  others 
"  the  principle  is  assumed  without  designating  it 
"  by  that  title.  If  that  is  not  their  basis  it  is 


"  difficult  to  see  that  they  have  any.  The  theory 
"  of  that  doctrine  seems  to  be  that  inasmuch  as 
"  the  employee  holds  himself  ready  to  do  the  work, 
"  therefore  he  has  done  the  work;  that  readiness 
"  is,  for  all  purposes,  equivalent  to  performance. 
"  For  the  purpose  of  allowing  a  recovery  in  some 
"  amount,  his  readiness  to  do  and  tender  of  per- 
"  formance  may  have  the  effect  of  performance  to 
"  the  extent  of  putting  the  employer  in  the  wrong, 
"  but  how  can  it  be  said,  in  truth,  that  he  has  done 
"  the  work?  that  he  has  performed?  The  claim 
"  is  based  upon  a  fiction,  an  untruth.  There  is 
"  no  acceptance  of  the  services;  there  is  no  de- 
"  livery  of  them;  the  defendant  has  not  had  the 
"  benefit  of  them;  he  has  not  had  value  received, 
"  and  upon  what  principle  is  it  that  in  law  he  is 
"  liable  for  the  agreed  price  when  he  has  not  re- 
"  ceived  the  commodity  which  he  agreed  to  buy, 
"  and  the  other  party  has  not  parted  with  the 
"  commodity  which  he  agreed  to  sell?  The  doc- 
"  trine  of  '  constructive  service,'  as  applied  to  a 
*'  case  of  this  character,  is  one  beset  with  difficul- 
"  ties.  It  requires  a  plaintiff  to  assume  that  to 
"  exist  which  in  fact  has  no  existence.  He  is  de- 
"  manding  wages  ichen  he  has  rendered  no  service. 
"  The  doctrine  contradicts  the  very  term  itself. 
"  How  can  he  truthfully  aver,  as  indebitatus  as- 
"  sumpsit,  that  the  defendant  is  indebted  to  him 
"  for  work  and  labor  done?  Averring  it,  how 


25 

"  could  he  prove  it?  But,  aside  from  the  matter 
"  of  pleading  and  proof,  in  order  to  recover  upon 
"  the  strength  of  this  doctrine,  the  employee  must 
"  not  only  be  willing  to  perform  on  his  part,  but 
"  must  hold  himself  in  readiness  to  perform.  This 
"  implies  that  he  will  remain  idle.  Public  policy, 
"  not  to  say  public  morals,  forbids  the  encourage- 
"  ment  of  an  idle  class.  Being  subject  to  the 
"  universal  rule  that  a  person  injured  by  the  act 
"  of  another,  is  bound  to  use  ordinary  diligence  to 
"  make  the  damage  as  light  as  may  be,  the  dis- 
"  charged  employee  must  use  ordinary  care  to 
"  obtain  employment.  He  may  not  be  required 
'*  to  seek  elsewhere,  or  to  engage  in  a  different 
"  industry.  But  he  is  bound  to  use  ordinary  effort 
"  to  obtain  similar  employment  in  the  same  vicin- 
"  ity;  at  least,  if  such  employment  is  offered,  he 
"  is  bound  to  take  advantage  of  it.  It  would  be 
"  a  direct  encouragement  to  idleness  to  hold  that 
"  he  who  may  have,  but  refuses,  similar  service, 
"  is  entitled  to  full  compensation  the  same  as 
"  though  he  performed  full  labor.  This  rule  stands 
"  squarely  across  the  path  of  '  constructive  service.' 
•'  For  if  the  workman  is  bound  to  accept  employ- 
"  ment  of  another  employer  how  can  he  continue 
"  ready  to  resume  work  under  his  former  em- 
"  ployer?  A  learned  writer,  whose  valued  paper 
"  in  support  of  the  doctrine  of  '  constructive  ser- 
**  vice  "  is  cited  by  counsel,  uses  this  language: 


26 

"  '  The  doctrine  of  constructive  service,  however, 
"  '  does  not  permit  an  employee  who  has  been 
"  '  wrongfully  discharged  to  remain  wilfully  idle 
"  '  during  the  period  for  which  he  had  been  en- 
"  '  gaged.'  A  most  singular  conception  of  the 
"  ground  work  of  the  doctrine,  it  seems  to  us. 
"  Being  actually  at  work  for  B,  how  can  he  be 
"  constructively  at  work  for  A?  Being  required 
"  to  hold  himself  in  readiness  to  resume  his  work 
"  for  A,  how  can  he  engage  with  B?  Engaging 
"  with  B,  how  can  he  be  ready  to  resume  work 
"  with  A? 

"  'Constructive  service,'  as  here  sought  to  be 
"  applied,  never  had,  as  we  think,  support  in  prin- 
"  ciple,  and  the  support  derived  from  authority  is 
"  at  least  very  considerably  impaired." 

In  the  note  to  Decamp  vs.  Hewitt,  43  Am.  De 
cisions,  205,  the  question  is  discussed  at  length, 
and  many  authorities  cited,  holding  that  a  dis 
charged  employee  cannot  maintain  an  action  to 
recover  wages  for  services  which  he  has  not  actu 
ally  performed. 

III. 

If  service  was  rendered  by  plaintiff  it  i.oas  ren 
dered  to  the  History  Compang  and  not  to  defendant. 

This  question  was  necessarily  referred  to  in  the 
discussion  of  the  points  raised  on  demurrer.  The 
facts  disclosed  by  the  record  make  the  position  of 
the  defendant  on  this  issue  absolutely  unanswer- 


27 

able.  While  the  agreement  itself  shows  conclu 
sively  that  defendant  did  not  employ  the  plaintiff, 
the  conduct  of  the  parties  shows  beyond  the 
shadow  of  a  doubt  that  the  plaintiff  did  not  con 
sider  the  defendant  his  employer  and  did  not  look 
to  him  for  the  payment  of  his  salary.  Between 
May,  1886,  and  the  23d  of  September,  1886,  the 
business  was  carried  on  by  the  parties  as  a  part 
nership,  the  plaintiff  owning  one-tenth  and  the 
defendant  nine-tenths.  The  salary  of  plaintiff  was 
paid  out  of  the  moneys  belonging  to  both  the  par 
ties  and  charged  as  an  expense  of  the  business. 
(Trans.,  folio  140).  The  arrangement  at  the  time 
it  was  made  as  understood  by  the  plaintiff  was, 
that  he  was  to  have  ten  per  cent,  of  the  entire 
business  and  ten  per  cent,  of  the  net  profits  after 
all  expenses  were  paid,  including  his  own  salary. 
As  soon  as  the  corporation  was  formed  the  prop 
erty  and  business  were  transferred  to  it,  the 
plaintiff  received  one-tenth  of  the  capital  stock 
and  the  business  was  carried  on  by  the  corporation 
until  the  date  of  the  commencement  of  this  action. 
The  plaintiff  acted  as  manager  for  the  corpora 
tion  until  the  end  of  June,  1892,  and  all  of  the 
service  which  he  claims  to  have  rendered  subse 
quent  to  June,  1892,  he  claims  to  have  rendered 
to  the  corporation.  From  the  date  of  its  forma 
tion  until  the  end  of  June,  1892,  the  corporation 
paid  his  salary.  It  was  paid  through  the  treasurer 


28 

of  the  company  who  was  under  the  direction  of 
the  plaintiff,  was  entered  upon  the  books  of  the 
corporation  as  an  expense  of  the  business,  and  all 
profits  which  were  divided  either  in  the  shape  of 
dividends  or  in  any  other  way,  were  the  net 
profits  after  the  deduction  of  all  expenses  includ 
ing  the  plaintiff's  salary.  He  commenced  actions 
against  the  corporation  to  recover  for  services 
rendered  it  during  the  months  of  July  and  Au 
gust,  1892.  For  the  payment  of  the  salary  which 
he  claimed  to  be  due  him  subsequent  to  June, 
1892,  he  made  demand  on  the  treasurer  of  the 
corporation,  but  never  made  any  demand  on  the 
defendant.  (Trans.,  folio  152.)  When  his  right 
to  act  as  manager  of  the  History  Company  was 
interfered  with  he  addressed  Dorland  as  the  sec 
retary  and  treasurer  of  the  corporation,  and  Dor- 
land  answered  him  in  that  capacity.  He  claims 
that  when  he  made  the  arrangement  with  Miller 
he  informed  the  latter  that  he  was  subject  to  the 
call  of  the  History  Company,  and  he  considered 
that  during  all  the  time  he  was  engaged  in  busi 
ness  with  Miller  that  the  History  Company  was 
entitled  to  call  upon  him  at  any  time  to  perform 
the  service  stipulated  by  him  in  this  agreement  to 
be  performed.  (Trans.,  folio  168.)  The  plaint 
iff  managed  the  business  of  the  copartnership  and 
of  the  corporation  and  deducted  all  expenses,  in 
cluding  his  own  salary,  before  dividing  profits  or 


29 

declaring  dividends,  and  took  at  one  time  one- 
tenth,  and  later  fifteen  one-hundredths  of  the 
profits  remaining  after  such  deduction. 

We  feel  that  it  is  not  necessary  to  discuss  this 
question  at  any  greater  length,  and  we  leave  it 
with  the  statement  that  it  is  impossible  to  read  the 
testimony  of  the  plaintiff  and  reach  any  other 
conclusion  than  that  he  thoroughly  understood 
that  after  the  formation  of  the  corporation  he  was 
in  its  service  and  not  the  service  of  the  defendant, 
and  that  his  compensation  was  to  be  paid  not  by 
the  defendant  but  by  the  corporation. 

The  authorities  cited  in  support  of  the  demurrer 
(particularly  Weaver  vs.  Upton)  are  conclusive 
against  the  plaintiff  on  this  question. 

IV. 

The  defendant  fully  performed  the  agreement. 

The  plaintiff  admits  that  defendant  transferred 
to  him  one-tenth  of  the  property,  and  that  upon 
the  formation  of  the  corporation  the  property  and 
business  were  transferred  to  it,  and  he  received 
certificates  representing  one-tenth  of  the  capital 
stock.  This  was  all  defendant  agreed  to  do,  and 
hence  there  was  no  testimony  sustaining  the  alle 
gation  of  the  complaint  that  he  had  failed  to  per 
form  the  terms  and  conditions  on  his  part. 


30 

V. 

The  plaintiff  was  not  dismissed  or  discharged, 
and  hence  can  only  recover  for  the  services  actually 
rendered. 

While  it  is  claimed  by  the  plaintiff  that  the 
conduct  of  some  of  the  officers  and  employees  of 
the  History  Company  was  such  as  to  make  it  very 
disagreeable  for  him  to  remain  at  the  office  of  the 
company,  he  does  not  claim  that  at  any  time  dur 
ing  the  period  for  which  he  claimed  compensation 
in  this  action,  the  defendant  personally  did  or  said 
anything  calculated  to  prevent  him  from  acting  as 
the  manager  of  the  business  of  the  corporation. 
When  interfered  with  in  the  discharge  of  his  duties 
he  served  notice  on  the  secretary  and  treasurer  of 
the  corporation,  but  had  no  conversation  of  any 
kind  with  the  defendant  between  July,  1892,  and 
the  time  when  this  action  was  commenced  (Trans., 
folio '152). 

The  immediate  cause  for  the  plaintiff  quitting 
the  service  of  the  company  is  stated  by  him  as 
follows:  (Trans.,  folio  203):  "I  considered  I 
wasn't  in  duty  bound  to  my  family  and  myself  to 
stay  there  in  that  draught  and  get  a  cold,  and  so  1 
informed  Mr.  Dorland  that  I  couldn't  stay  there 
unless  he  changed  the  desk."  He  claims  that 
Dorland, told  him  he  had  been  instructed  by  de 
fendant  not  to  let  him  have  the  correspondence 
and  not  to  permit  him  to  do  any  work  at  the  office 


31 

of  the  company.  He  states  that  Borland  was  un 
der  direction  of  defendant  "  because  Borland  said 
so,"  hut  admits  that  he  knew  that  Borland  was 
acting  under  direction  of  the  defendant  only  be 
cause  Borland  said  so.  (Trans.,  folio  104). 

While  it  is  true  that  plaintiff  testified  that  Mor 
rison,  the  vice-president  of  the  company,  told  him 
he  had  no  right  there  in  July,  1892,  he  continued 
to  go  there  and  discharge  his  duties  for  a  long 
time  after  that,  and  did  not  act  upon  the  sugges 
tion  which  Morrison  made  to  him.  (Trans.,  folios 
204  and  205).  Notwithstanding  the  conduct  of 
Borland  and  Morrison,  the  plaintiff  says  posi 
tively  and  unequivocally  that  he  was  never  dis 
missed  or  discharged  from  the  service  of  the  His 
tory  Company.  (Trans.,  folio  236). 

There  cannot  be  found  anywhere  in  the  record 
any  testimony  showing  that  the  defendant  dis 
missed  or  discharged  the  plaintiff,  or  directed  any 
one  to  dismiss  or  discharge  him.  While  it  is  true 
he  claims  that  the  defendant  treated  him  without 
consideration  on  one  or  two  occasions,  everything 
which  he  charges  against  defendant  took  place 
long  before  he  voluntarily  left  the  History  Com 
pany's  office.  The  last  thing  which  defendant 
did,  so  far  as  the  testimony  discloses,  was  to  push 
the  plaintiff's  desk,  and  this  occurred  in  the  month 
of  July,  1892.  (Trans.,  folios  200  and  201.)  He 
certainly  could  not  have  taken  that  act  as  a  dis- 


32 

charge,  as  on  his  own  showing  he  remained  and 
discharged  his  duties  for  a  long  time  after  that. 
The  only  reason  why  he  discontinued  his  visits  to 
the  office  of  the  company  is  that  his  salary  was 
not  paid.  He  says  that  the  duties  he  performed 
during  September,  October  and  November  were 
"  sitting  around  and  waiting.  It  was  rather  te 
dious  and  not  as  easy  as  managing  the  business. 
It  was  very  little  work.  I  would  have  been  willing 
to  have  gone  there  at  eight  o'clock  in  the  morning 
and  stayed  until  five  o'clock  at  night  if  my  salary 
had  been  paid;  but  I  would  rather  have  managed 
the  business."  This  testimony  not  only  fails  to 
show  that  the  defendant  dismissed  the  plaintiff,  but 
there  is  no  showing  that  he  was  dismissed  by  any 
officer  of  the  History  Company.  We  do  not  for 
a  moment  claim  that  if  the  testimony  of  the  plaintiff 
be  true,  there  did  not  exist  good  cause  for  him  to 
quit  the  service  of  the  History  Company.  But 
quitting  service  for  cause  is  not  equivalent  to  a 
discharge.  While  an  employee  who  is,  without 
good  cause,  discharged  before  the  end  of  the  term 
for  which  he  was  hired,  may  recover  damages  for 
breach  of  the  contract  by  the  employer,  one  who 
quits  the  service  for  good  cause,  can  only  recover 
compensation  for  the  portion  of  the  term  during 
which  he  has  actually  rendered  service.  Harsh 
treatment  may  have  justified  the  abandonment  of 
the  contract  of  service  by  plaintiff,  but  did  not 


33 

amount  and  could  not  have  amounted  to  a  dis 
charge  by  defendant.  If,  by  reason  of  the  harsh 
treatment  to  which  plaintiff  was  subjected,  he 
abandoned  the  contract  of  service,  his  recovery  is 
measured  by  the  provisions  of  sections  2003  of 
the  CivilCode : 

Civil  Code,  Sec.  2003:  "An  employee  who  quits 
"  the  service  of  his  employer  for  good  cause  is  en- 
"  titled  to  such  proportion  of  the  compensation 
"  which  would  become  due  in  case  of  full  perform- 
"  ance  as  the  services  which  he  has  already  ren- 
"  dered  bear  to  the  services  which  he  was  to  ren- 
"  der  as  full  performance." 

The  manifestation  of  a  disposition  by  the  em 
ployer  to  force  the  employee  to  quit  the  employ 
ment  does  not  amount  to  a  discharge  nor  warrant 
the  rescission  of  the  contract  by  the  employee. 

De  Camp  vs.  /Stevens,  4Blackford  (Ind.),  24. 

The  fact  that  the  master  constantly  found  fault 
with  the  servant  in  respect  to  the  manner  of  his 
work,  is  not  sufficient  cause  to  warrant  the  servant 
to  terminate  the  contract. 

Henderhen  vs.  Cook,  66  Barb.,  21. 

Telling  a  servant  to  go  to  hell  is  not  only  not  a 
discharge,  but  is  not  sufficient  ground  to  warrant 
the  servant  in  quitting  the  employment. 
Marsh  vs.  Ruksson,  1  Wend.,  514. 


34 

While  the  discussion  of  this  question  seems  out 
of  place  in  an  action  to  recover  for  services  al 
leged  to  have  been  rendered,  an  examination  of 
this  record  will  disclose  that  part  of  the  time  the 
case  was  tried  on  the  theory  that  it  was  an  action 
to  recover  for  service  actually  performed,  and  at 
other  times  it  seems  to  have  been  treated  as  an 
action  to  recover  damages  for  breach  of  the  con 
tract  of  hiring. 

VI. 

The  order  denying  defendant's  motion  for  new 
trial  should  be  reversed  for  numerous  errors  com 
mitted  by  the  lower  Court. 

Something  over  sixty  exceptions  were  taken  by 
the  defendant  during  the  trial,  and  we  think  most 
of  them  well  taken.  The  testimony  which  was 
admitted  against  defendant's  objection  was  not  re 
sponsive  to  any  issue  presented  by  the  pleadings 
and  was  calculated  to  and  did  influence  the  jury 
to  his  prejudice. 

The  first  two  exceptions  were  taken  to  orders  of 
the  Court  overruling  defendant's  objection  to 
testimony  in  relation  to  certain  matters  which 
took  place  in  1882,  more  than  four  years  before 
the  making  of  the  contract  between  plaintiff  and 
defendant,  and  ten  years  before  the  alleged  breach 
of  contract.  (Trans.,  folios  51  and  52.)  There 
was  no  issue  presented  to  which  this  testimony  was 
responsive,  and  while  it  may  be  said  that  it  did 


35 

not  hurt  defendant,  it  is  to  be  presumed  that  the 
jury  attached  some  importance  to  it. 

Exceptions  3  and  4  (Trans.,  folios  60  and  63) 
were  taken  to  orders  of  the  Court  overruling  ob 
jections  to  questions  propounded  to  the  plaintiff  in 
relation  to  the  payment  of  dividends,  and  the  con 
duct  of  the  History  Company's  business  prior  to 
March,  1892.  The  plaintiff  was  paid  the  salary 
which  he  claimed  to  and  including  June,  1892, 
and  it  certainly  made  no  difference  whether  the 
company  paid  dividends  prior  to  that  time  or  not. 
The  object  of  this  testimony  and  its  effect  must 
have  been  to  exaggerate  the  importance  of  the 
plaintiff  and  to  prejudice  the  jury  against  the  de 
fendant.  Still  more  objectionable  was  the  testi 
mony  to  the  effect  that  the  defendant  interfered 
with  the  plaintiff  in  1889,  three  years  before  the 
alleged  breach,  by  taking  his  name  off  the  letter 
heads  of  the  History  Company. 

Exception  No.  5  (Trans.,  folio  65)  was  to  an 
order  overruling  an  objection  to  a  question  calling 
for  the  conduct  of  the  defendant  at  a  meeting  of 
the  directors  of  the  History  Company  in  1889. 
This  did  not  show  or  tend  to  show  any  breach  of 
the  contract  in  1892,  and  indeed  there  is  no  claim 
in  the  pleadings  of  any  failure  of  performance  by 
the  defendant,  except  his  refusal  to  pay  the 
plaintiff's  salary  subsequent  to  June,  1892. 

Exception  No.  6  (Trans.,  folio  71)  was  to  an  or- 


36 

der  overruling  an  objection  to  a  question  pro 
pounded  to  the  plaintiff  calling  for  the  response 
made  by  Dorland  to  a  demand  made  upon  him  as 
the  secretary  and  manager  of  the  History  Com 
pany,  for  the  payment  of  plaintiff's  salary  subse 
quent  to  July,  1892.  There  was  no  showing  that 
Dorland  was  authorized  to  speak  for  the  defend 
ant,  and  the  plaintiff  himself  testified  later  on  that 
the  only  knowledge  he  had  that  Dorland  was 
authorized  to  speak  for  the  defendant  was  the  fact 
that  Dorland  himself  had  told  him  so.  (Trans., 
folio  104.)  The  fact  that  the  plaintiff  made  de 
mand  upon  the  secretary  of  the  History  Company 
for  his  salary  shows  conclusively  that  he  considered 
the  History  Company  his  employer,  and  in  an 
action  against  the  corporation  such  testimony  would 
have  been  relevant  and  competent;  but  it  was 
neither  relevant  nor  competent  in  an  action  against 
the  defendant  until  it  was  shown  that  Dorland  was 
the  agent  of  defendant. 

Exception  No.  8  (Trans.,  folio  80)  was  to  an 
order  of  the  Court  overruling  an  objection  to  a 
question  propounded  to  the  plaintiff  and  calling 
for  information  in  relation  to  a  conversation  be 
tween  plaintiff  and  defendant,  about  the  15th  of 
May,  1892.  As  has  been  said,  the  plaintiff  was 
paid  for  all  services  rendered  by  him  up  to  and 
including  the  30th  day  of  June,  1892.  He 
claims  he  was  never  discharged  or  dismissed, 


37 

and  asserts  that  he  actually  rendered  service  until 
the  latter  part  of  the  year  1892.  Hence  the  tes 
timony  called  for  by  this  question  was  wholly 
irrelevant  and  immaterial.  An  examination  of 
the  testimony  given  in  response  to  the  question 
will  show  that  its  object  was  to  place  the  defend 
ant  in  a  most  unfavorable  light  before  the  jury,  and 
that  the  object  was  accomplished. 

The  same  may  be  said  of  Exception  No.  9 
(Trans.,  folio  85). 

Exception  No.  10  (Trans.,  folio  87)  was  to  an 
order  overruling  an  objection  to  a  question  pro 
pounded  to  the  plaintiff,  in  relation  to  the  levy  of 
an  assessment  in  November,  1892,  and  exceptions 
Nos.  11  and  12  (Trans.,  folios  88  and  89)  present 
substantially  the  same  question.  Whether  an  as 
sessment  was  or  was  not  levied  or  paid  had  noth 
ing  to  do  with  this  case,  nor  with  the  performance 
of  plaintiff's  contract,  nor  the  failure  of  defend 
ant  or  the  History  Company  to  pay  him  his  salary, 
nor  the  refusal  of  the  History  Company  or  the 
defendant  to  permit  him  to  perform  the  contract. 

Exception  No.  13  (Trans.,  folio  96)  was  to  an 
order  overruling  an  objection  to  a  question  pro 
pounded  to  the  plaintiff  in  relation  to  the  reply 
made  to  a  question  which  he  had  put  to  Morrison. 
The  objection,  which  was  certainly  well  taken, 
was  upon  the  ground  that  defendant  was  not  bound 
by  any  statement  made  by  Morrison,  and  there 


38 

was  no  attempt  made  at  any  time  during  the  trial 
to  show  that  defendant  had  authorized  Morrison 
to  speak  for  him.  The  same  question  is  presented 
by  Exception  No.  14  (Trans.,  folio  103)  in  rela 
tion  to  statements  made  by  Dorland,  the  plaintiff 
admitting  that  the  only  evidence  he  had  of  the 
fact  that  Dorland  was  permitted  to  speak  for  the 
defendant  was  that  Dorland  told  him  so  (Trans., 
folio  104).  The  same  question  is  presented  by 
Exception  No.  15  (Trans.,  folio  105). 

Exception  No.  16  (Trans.,  folio  111)  was  to  an 
order  of  the  Court  overruling  an  objection  to  the 
reading  of  an  extract  from  a  volume  of  defendant's 
works  published  in  1890.  The  conduct  of  the 
plaintiff  during  that  year  was  not  in  issue  arid  any 
statement  which  defendant  may  have  made  con 
cerning  him  during  that  year  was  entirely  irrele 
vant  and  immaterial. 

Exception  No.  22  (Trans.,  folio  252)  was  to  an 
order  overruling  defendant's  objection  to  a  ques 
tion  put  to  the  witness  Hambly  calling  for  a  state 
ment  of  the  number  of  hours  which  plaintiff  spent 
in  the  office  of  the  History  Company  each  day 
from  September,  1886,  to  February,  1892.  The 
plaintiff's  conduct  prior  to  July,  1892,  was  not  in 
issue  and  had  no  relevancy  or  materiality  to  any 
question  upon  which  the  jury  was  to  pass. 

Exception  No.  23  (Trans.,  folio  311)  was  to  an 
order  overruling  a  question  put  to  the  witness 


Hartwell,  asking  if  defendant  ever  countermanded 
any  of  plaintiff's  orders  in  relation  to  the  business 
of  the  History  Company.  Hartwell  left  the  ser 
vice  of  the  company  in  May,  1892,  and  no  issue 
was  presented  in  relation  to  the  conduct  of  plaintiff 
or  defendant  prior  to  that  time.  The  effect  of  this 
testimony  was  to  place  the  defendant  in  an  un 
favorable  light  before  the  jury. 

Exceptions  Nos.  24,  25,  26,  27,  28,  29,  30,  31, 
and  32  (Trans.,  folios  324,  333,  334,  336,  342;  344, 
346,  349  and  352)  were  to  orders  of  the  Court 
overruling  objections  made  to  questions  propounded 
to  the  witness  Trigo.  The  object  of  the  testimony 
to  which  these  objections  were  made  was  to  prove 
the  formation  of  a  conspiracy,  in  the  latter  part  of 
1891  or  the  early  part  of  1892,  to  prevent  the 
plaintiff  from  performing  his  contract  of  service, 
to  prevent  him,  as  a  stockholder,  from  receiving 
any  profit  from  the  corporation,  and  to  rob  the 
History  Company  of  a  portion  of  its  property. 
How  this  testimony,  or  any  of  it,  tended  to  show 
the  performance  of  the  contract  by  the  plaintiff, 
or  that  defendant  was  liable  to  plaintiff  for  the 
agreed  salary,  which  were  the  only  issues  pre 
sented  by  the  pleadings,  is  difficult  to  understand. 
It  is  very  easy  to  appreciate,  however,  that  the 
testimony  placed  the  defendant  in  a  very  unen 
viable  light  before  the  jury,  and  induced  for  the 
plaintiff  a  great  deal  of  sympathy  to  which  he 
was  not  entitled. 


40 

Exception  No.  33  (Trans.,  folio  471)  is  to  an 
order  overruling  an  objection  to  the  introduction 
of  a  letter  written  by  Morrison  in  February,  1892. 
The  plaintiff  stated  that  the  letter  was  offered  for 
the  purpose  of  showing  that  the  witness  had  ap 
plied  to  the  defendant  for  the  office  of  vice-presi 
dent  of  the  History  Company.  The  plaintiff  was 
not  suing  to  recover  for  services  as  vice-president 
of  the  History  Company,  and  it  is  riot  claimed  that 
any  agreement  was  made  that  he  should  have  or 
retain  that  office.  At  any  rate,  nothing  of  that 
kind  is  said  in  the  agreement  on  which  the  action 
is  founded.  The  object  of  the  letter  was  to  show 
that  the  witness  Morrison  had  attempted  to  under 
mine  the  plaintiff,  and  its  effect  was  to  place  him 
and  the  defendant  in  an  unfavorable  light. 

Exception  No.  35  (Trans.,  folio  615)  was  to  an 
order  overruling  a  question  to  the  witness  Moore, 
in  relation  to  certain  statements  made  to  him  by 
Morrison.  This  was  an  attempt  to  contradict  Mor 
rison  on  a  collateral  matter  brought  out  by  the 
plaintiff  on  his  cross-examination.  Having  ex 
amined  him  on  a  collateral  matter,  he  was  bound 
by  his  answer  and  should  not  have  been  permitted 
to  contradict  him. 

The  same  objection  is  presented  to  Exception 
No.  35  (Trans.,  folio  624).  On  the  cross-exam 
ination  of  Miller  the  plaintiff  against  the  defend 
ant's  objection  went  into  certain  collateral  matters 


and  then  attempted  to  contradict  the  testimony  of 
the  witness  on  those  subjects. 

Exception  No.  39  (Trans.,  folio  673)  was  to  an 
instruction  given  to  the  jury  to  the  effect  that  if 
they  found  that  plaintiff  was  ready  to  perform  the 
service  and  was  prevented  by  defendant  from  per 
forming,  they  should  find  in  his  favor;  and  the 
same  question  is  presented  by  Exception  No. 
40  (Trans.,  folio  674).  As  we  have  several 
times  suggested,  the  Court  below  confounded 
this  with  an  action  for  damages  for  breach  of 
contract  and  admitted  evidence  and  instructed 
the  jury  on  that  theory.  While  the  rule  laid 
down  might  have  been  proper  in  an  action 
to  recover  damages  for  the  refusal  of  the  de 
fendant  to  permit  the  plaintiff  to  perform  his  con 
tract  it  had  no  application  in  an  action  to  recover 
for  services  alleged  to  have  been  actually  rendered. 
The  jury  should  have  been  told  that  in  order  to 
entitle  plaintiff  to  recover  in  this  action,  he  should 
have  shown  actual  performance  of  the  service  al 
leged  in  his  complaint  to  have  been  performed. 

Exception  No.  41  (Trans.,  folio  676)  is  to  an 
instruction  reading  as  follows:  "There  is  testi- 
"  mony  tending  to  show  that  the  plaintiff  was  not 
"  discharged  from  employment  under  said  agree- 
"  inent  either  by  the  defendant  or  by  the  History 
"  Company.  Under  this  state  of  facts,  the  plaintiff 
"  was  simply  bound  to  hold  himself  in  readiness 


42 

"  to  perform  such  services  as  may  have  been  re- 
"  quired  of  him  by  the  said  defendant  or  the 
"  History  Company.  If  you  find  from  the  evi- 
41  dence  that  he  was  not  required  or  allowed  by 
"  either  the  said  History  Company  or  the  said 
"  defendant  to  perform  any  services,  but  held 
"  himself  in  readiness  to  execute  the  contract,  in 
"  accordance  with  its  terms,  such  readiness  to  per- 
"  form  is  equivalent  to  performance."  This  in 
struction  told  the  jury  that  the  defendant  was 
responsible,  not  alone  for  his  own  conduct,  but  for 
the  conduct  of  the  History  Company;  not  alone 
for  his  own  default,  but  for  the  default  of  the 
History  Company;  not  alone  for  his  own  refusal 
to  permit  the  plaintiff  to  perform  his  contract,  but 
also  for  the  refusal  of  the  History  Company  to 
permit  him  to  perform;  and  that  if  plaintiff  was 
ready  to  perform  and  the  History  Company  re 
fused  to  allow  him  to  perform,  such  readiness  was 
equivalent  to  performance  and  entitled  him  to  a 
verdict,  not  against  the  History  Company  but 
against  the  defendant,  for  the  full  amount  for 
which  he  sued. 

This  instruction  was  particularly  hurtful  to  the 
defendant,  as  the  Court  had  admitted  against  his 
objection  testimony  tending  to  show  acts  unfriend 
ly  to  the  plaintiff  on  the  part  of  the  treasurer  and 
vice-president  of  the  History  Company,  and  the 
jury  were  told  in  effect  that  if  those  officers  had 


43 

thrown  obstacles  in  the  way  of  the  performance  of 
the  agreement  by  plaintiff,  that  defendant  was 
answerable  therefor,  although  he  had  not  done 
anything  calculated  to  interfere  with  the  plaintiff 
or  to  prevent  him  from  carrying  out  his  contract. 
Exception  No.  42  (Trans.,  folio  679)  was  to  an 
instruction  in  which  the  jury  was  told  that  if  the 
defendant  prevented  the  plaintiff  from  discharging 
the  duties  required  of  him,  he  was  entitled  to  the 
salary  mentioned  in  the  agreement  "  the  same  as 
if  all  the  duties  required  by  said  contract  had  been 
performed."  This  was  not  only  a  bad  instruction 
in  this  case,  but  would  not  have  been  good  even 
in  an  action  to  recover  damages  for  the  breach  of 
the  contract.  A  discharged  employee  is  not  under 
any  circumstances  entitled  to  his  salary  "  the  same 
as  if  all  the  duties  required  by  the  contract  of 
hiring  had  been  performed."  He  is  entitled  to 
recover  as  damages  the  amount  which  he  has  lost 
by  having  been  prevented  from  performing  the 
agreement,  but  it  by  no  means  follows  that  his  loss 
is  the  salary  stipulated  to  be  paid  to  him.  The 
measure  of  the  plaintiff's  recovery  in  an  action  for 
damages  is  correctly  stated  in  the  instruction  to- 
which  Exception  No.  43  (Trans.,  folio  681)  was 
taken.  The  latter  instruction  would  have  been 
proper  in  an  action  for  breach  of  contract,  but  it 
was  improper  in  this  case,  and  further  than  that, 
it  was  impossible  for  the  jury  to  reconcile  it  with 


44 

the  instruction  to  which  Exception  No.  42  was 
taken. 

Exceptions  Nos.  46,  47  and  48  (folios  684  and 
685)  were  to  instructions  charging  the  jury  in  re 
lation  to  the  amount  which  plaintiff  was  entitled 
to  recover.  The  Court  committed  error  in  giving 
each  of  these  instructions,  as  this  was  not  an  ac 
tion  for  "  default,"  no  "  measure  of  damage  "  was 
in  issue,  because  no  damage  was  alleged,  nor  was 
"the  detriment  caused  by  the  breach  of  an  obli 
gation  "  presented  to  or  to  be  passed  upon  by  the 
jury. 

Exception  No.  48A  (Trans.,  folio  687)  was  to 
the  refusal  of  the  Court  to  give  an  instruction  re 
quested  by  defendant,  and  we  submit  that  it  is 
only  necessary  to  read  it  in  order  to  see  that  the 
instruction  was  proper  and  should  have  been 
given. 

Exception  No.  49  (Trans.,  folio  688)  was  to  the 
refusal  of  the  Court  to  instruct  the  jury  as  follows: 
"  You  are  instructed  that  the  written  agreement 
"  set  forth  in  the  complaint  does  not  provide  that 
"  the  salary  of  the  plaintiff  shall  be  paid  by  de- 
"  fendant."  It  was  the  duty  of  the  Court  to 
construe  the  agreement  and  to  tell  the  jury  upon 
whom  rested  the  obligation  to  pay  the  salary. 
That  the  agreement  did  not  provide  for  the  pay 
ment  of  the  salary  by  defendant,  we  think  we 
have  conclusively  demonstrated. 


45 

Exception  No.  50  (Trans.,  folio  689)  was  to  the 
refusal  of  the  Court  to  instruct  the  jury  that  if  a 
corporation  had  been  formed  and  the  property 
mentioned  in  the  agreement  turned  over  to  it  and 
one-tenth  of  the  capital  stock  issued  to  the  plaint 
iff,  and  the  plaintiff  became  and  acted  as  the 
manager  of  the  corporation,  the  claim  of  the 
plaintiff,  if  he  had  any,  was  against  the  corpora 
tion  and  not  against  the  defendant. 

Exception  No.  51  (Trans.,  folio  690)  was  to  the 
refusal  of  the  Court  to  instruct  the  jury  that  in 
order  to  find  for  the  plaintiff  they  must  find  that 
he  actually  rendered  the  service  for  which  he 
sued,  and  that  in  this  action  it  was  enough  for  him 
to  show  that  he  was  prevented  from  performing 
such  service.  This  instruction  correctly  stated 
the  law  upon  the  subject  to  which  it  related,  and 
should  have  been  given. 

Exception  No.  52  (Trans.,  folio  693)  was  to  the 
refusal  of  the  Court  to  give  an  instruction  reading 
as  follows:  "If  you  find  that  plaintiff  was  not 
"  dismissed  or  discharged  from  the  employment, 
"  but  that  he  quit  said  employment  on  account  of 
"  the  treatment  to  which  he  was  subjected,  then  I 
"  instruct  you  that  this  was  an  abandonment  of  the 
*  employment  by  him,  and  that  he  cannot  recover, 
"  except  for  services  rendered  before  such  aban- 
"  donment."  This  instruction  correctly  stated  the 
rule  of  law  laid  down  in  section  2003  of  the  Civil 


46 

Code,  and  should  have  been  given.  The  Court 
modified  the  instruction  so  as  to  provide  that  if  the 
plaintiff  quit  the  employment  on  account  of  the 
treatment  to  which  he  was  subjected  by  persons 
other  than  the  defendant,  that  it  was  an  abandon 
ment  of  the  service,  and  he  could  not  recover 
except  for  the  services  actually  rendered.  If  the 
plaintiff  quit  the  employment  on  account  of  the 
treatment  to  which  he  was  subjected,  it  was  cer 
tainly  an  abandonment  of  the  employment, whether 
he  was  subjected  to  such  treatment  by  the  defend 
ant  or  by  any  one  else.  If  he  was  not  dismissed* 
but  quit  the  employment — no  matter  for  what 
reason — he  was  not  entitled  to  recover  for  any 
service  not  actually  rendered. 

Exception  No.  53  (Trans.,  folio  695)  was  to  the 
refusal  of  the  Court  to  instruct  the  jury  as  follows: 
"  This  is  not  an  action  to  recover  damages  for 
"  breach  of  the  contract  set  out  in  the  complaint. 
'"  It  is  to  recover  for  services  claimed  to  have  been 
"  performed  under  that  contract,  and  it  is  there- 
"  fore  necessary,  in  order  to  find  for  plaintiff,  to 
41  find  that  he  actually  rendered  the  service." 
This  was  but  stating  that  in  order  for  the  plaintiff 
to  recover  he  must  have  satisfied  the  jury  of  th« 
truth  of  the  allegations  of  his  complaint.  > 

Exception  No.  56  (Trans.,  folio  700)  was  to  the 
refusal  of  the  Court  to  instruct  the  jury  as  follows: 
•"  If  you  find  from  the  evidence  that  after  the 


"  making  of  the  agreement  set  out  in  the  com- 
"  plaint,  the  plaintiff  entered  into  or  engaged  in 
"  directly  or  indirectly,  any  other  mercantile  or 
"  manufacturing  business,  then  I  instruct  you  that 
11  when  he  so  entered  into  or  engaged  in  said  busi- 
"  ness,  he  violated  the  agreement." 

The  agreement  contains  this  provision:  "  The 
"  said  Stone  agrees  not  to  enter  into  or  engage  in 
"  directly  or  indirectly  any  other  mercantile  or 
"  manufacturing  business,  or  to  any  other  business 
"  or  occupation  which  shall  in  anywise  absorb  his 
"  mind  or  strength  or  interfere  with  his  interest 
"  or  efforts  on  behalf  of  this  History  Company,  for 
"  said  term  of  ten  years."  There  was  testimony 
tending  to  show  that  he  had  entered  into  a  mer 
cantile  and  manufacturing  business  with  Miller. 
The  proper  construction  of  this  provision  of  the 
agreement  is  that  plaintiff  should  not  engage, 
directly  or  indirectly,  in  any  other  mercantile  or 
manufacturing  business  of  any  kind,  and  that  he 
should  engage  in  no  other  business  which  should 
absorb  his  mind  or  interfere  with  his 
efforts  on  behalf  of  the  History  Company. 
He  is  not  given  the  right  to  engage 
in  any  other  mercantile  or  manufacturing 
business,  even  if  it  does  not  in  anywise  absorb  his 
mind  or  interfere  with  his  efforts  on  behalf  of  the 
company,  but  is  absolutely  prohibited  from  en 
gaging  in  any  such  business.  He  may,  under  the 


48 

provisions  of  the  agreement,  engage  in  any  other 
occupation  or  business,  except  a  mercantile  or 
manufacturing  business,  which  does  not  in  any 
wise  absorb  his  mind  or  interfere  with  his  efforts 
on  behalf  of  the  corporation.  The  business  which 
the  agreement  provided  should  be  carried  on  was 
a  mercantile  and  manufacturing  business.  It  is 
quite  clear  that  the  parties  intended  that  the 
plaintiff  should  not  engage  in  any  other  business 
of  the  same  character,  and  unless  this  be  the 
proper  construction,  the  words  "any  other  mer 
cantile  or  manufacturing  business "  are  entirely 
without  force  or  effect.  In  other  words,  if  it  had 
been  intended  that  plaintiff  should  have  the  right 
to  engage  in  any  mercantile  or  manufacturing 
business  which  did  not  absorb  his  mind  or  inter 
fere  with  his  efforts  on  behalf  of  the  corporation, 
the  restriction  would  have  been  confined  to  "any 
other  business  or  occupation  which  should  in  any 
wise  absorb  his  mind,"  etc.,  which  would  have  in 
cluded  mercantile  and  manufacturing  business  and 
every  other  branch  of  business.  In  construing  an 
agreement  every  portion  of  it  should  be  given 
effect,  if  possible.  That  the  Court  below  in  de 
clining  to  instruct  the  jury  as  requested  construed 
the  agreement  as  if  the  words,  "  any  other  mer 
cantile  or  manufacturing  business "  had  been  en 
tirely  omitted  from  it,  is  quite  clear.  4 


49 

VII. 

The  verdict  ivas  against  law. 

The  Court  instructed  the  jury  that  if  the  services 
rendered,  were  rendered  for  the  History  Company 
and  not  for  the  defendant,  then  the  plaintiff  could 
not  recover  against  the  defendant,  yet  all  the  testi 
mony  showed  and  the  plaintiff  himself  admitted 
and  testified,  that  the  services  claimed  to  have 
been  performed  by  him,  were  performed  for  the 
History  Company  and  not  for  the  defendant. 

The  judgment  and  the  order  denying  defend 
ant's  motion  for  new  trial  should  be  reversed. 
Respectfully  submitted, 

EDWARD  J.  McCUTCHEN, 

Attorney  for  Appellant* 


Due    service   of  the  within    is    hereby  admitted 
this day  of ^895. 

Attorney  for 


No. 


IN    THE 

SUPREME    COURT 

OF    THE 

STATE    OF    CALIFORNIA. 


N.    J.    STONE, 

Plaintiff  and  Respondent, 
vs. 

H.     H.     BANCROFT, 

Defendant  and  Appellant. 


Respondent's  Points  and  Authorities, 


REDDY,  CAMPBELL  &  METSON, 

Attorneys  for  Respondent. 


Filed  this day  of ..,  A.  D.  189 

T.  H.  WARD,  Clerk. 

By Deputy  Clerk. 

JAMES  H.  BARRY,  PKINTHK,  439  MONTGOMHRV  STREET,  SAM  FRANCISCO. 


IN  THE  SUPREME  COURT 

OF    THE 

STATE  OF   CALIFORNIA. 


N.  J.  STONE, 

Plaintiff, 


vs. 
H.  H.  BANCROFT, 


Defendant. 


STATEMENT  OF  FACTS. 

This  action  is  brought,  upon  a  written  con 
tract,  a  copy  of  which  is  set  forth  in  the  com 
plaint,  for  fourteen  months'  salary  at  the  rate 
of  three  hundred  and  fifty  dollars  per  month, 
commencing  on  the  1st  day  of  July,  1892, 
amounting  in  the  aggregate  to  the  sum  of  four 
thousand  nine  hundred  dollars. 

The  defendant  interposed  a  demurrer  to  the 
complaint,  which  was  overruled. 

The  defendant  answered  and   admitted   the 


2 

due  execution  of  the  contract,  and  that  the 
amount  sued  for  had  not  been  paid,  and  denied 
his  liability  for  the  payment  thereof  upon 
three  grounds: 

First.  That  defendant  was  not  personally 
liable  to  the  plaintiff  on  the  contract  for  the 
salary  sued  for,  but  that  the  same  was  payable 
out  of  the  earnings  and  profits  o?  the  History 
Company. 

Second.  That  the  plaintiff,  on  his  part,  did 
not  keep  and  perform  the  terms  and  conditions 
of  the  contract. 

Third.  That  the  defendant,  on  his  part,  did 
perform  all  the  terms  and  conditions  of  the 
contract. 

The  first  defense  involves  the  construction 
of  the  written  agreement,  and  presents  a  pure 
question  of  law. 

The  second  and  third  defenses  give  rise  to 
questions  of  fact. 

These  are  the  only  issues  presented  by  the 
pleadings. 

The  jury  rendered  a  verdict   in  favor  of  the 
plaintiff  and  against  the  defendant,  upon  which 
verdict  the  Court  rendered  judgment. 
Trans.,  pp.  15-16. 

The  defendant   moved  for  a  new  trial.     The 


motion  was  denied,  and  from  the  judgment  and 
order  the  defendant  has  taken  this  appeal. 

RESPONDENT'S  POINTS  AND  AUTHORI 
TIES. 

INTERPRETATION  OF  AGREEMENT:  THE  DEFEND 
ANT  IS  PERSONALLY   LIABLE  TO  THE    PLAINTIFF    ON 
VTHE  CONTRACT,  FOR  THE  PAYMENT  OF  THE  SALARY 
MENTIONED  THEREIN. 

The  defendant  and  the  plaintiff  were  the 
only  parties  to  the  contract. 

It  is  an  elementary  principle  that  "both  were 
bound,  each  to  perform  his  part  of  the  agree 
ment.  Neither  party  pretended  to  bind  any 
body  but  himself. 

The  execution  of  the  agreement  superseded 
all  the  oral  negotiations  or  stipulations  con 
cerning  its  matter,  which  preceded  or  accompa 
nied  the  execution  of  the  instrument. 

C.  C.,  Sec.  1625. 

The  language  of  the  contract  is  clear  and  ex 
plicit,  and  should  therefore  govern  in  its  inter 
pretation. 

C.  C.,  Sec.  1638. 


It  is  a  contract  of  employment. 
C.  C.,   Sec.   1965. 

The  recitals  contained  in  the  instrument  are 
conclusive  of  the  facts  therein  recited.  These 
show  that  Mr.  Bancroft  had  heen  engaged  in  the 
business  mentioned  for  a  considerable  length 
of  time,  and  had  carried  it  on  under  various 
names,  but  latterly  under  the  name  of  the  His 
tory  Company,  and  that  Mr.  Stone  had  conducted 
the  business  for  him ;  that  Mr.  Bancroft  appreci 
ated  the  value  of  the  services  of  Mr.  Stone,  and 
desired  to  acquire  them  by  an  agreement  for  a 
period  of  ten  years;  and,  in  consideration  of 
the  valuable  services  already  performed  by 
Mr.  Stone,  Mr.  Bancroft  sold  and  assigned  to 
Mr.  Stone  a  one-tenth  interest  in  said  History 
Company,  and  its  plates,  paper,  stock,  etc., 
upon  the  conditions  set  forth. 

Trans.,  pp.   4,   5.  and  6,  fols.  6-10  inclu 
sive. 

All  that  is  required  of  Mr.  Stone  under  the 
contract  is  that  he  shall  devote  his  whole  time 
and  best  energies,  for  a  period  of  ten  years,  to 
the  business  mentioned. 

The  grant  of  the  property  mentioned,  as  will 


be  seen,  was  upon  condition  subsequent,  and 
the  salary  of  three  hundred  and  fifty  dollars 
per  month  was  dependent  upon  the  perform 
ance  of  the  services  required. 

The  services  were  to  be  rendered  to  the  His 
tory  Company,  but  the  History  Company  be 
fore  the  execution  of  the  agreement  was  a 
myth.  There  was  no  company.  Mr.  Bancroft 
was  the  real  party,  and  he  used  the  name  of 
the  company  in  conducting  his  own  business, 
and  after  the  agreement  and  up  to  the  time  of 
the  incorporation  of  the  History  Company, 
Bancroft  was  the  owner  of  ninety  per  cent,  of 
the  business  and  property,  and  an  agreement 
to  render  services  to  the  History  Company,  was 
an  agreement  to  render  services  to  Bancroft 
himself. 

The  contract  was  not  one  of  partnership,  but, 
as  above  stated,  was  one  of  employment,  by 
which  Mr.  Stone,  for  the  consideration  named, 
agreed  to  render  his  services  to  the  History 
Company. 

All  that  had  been  transferred  or  promised  to 
Mr.  Stone  was  in  the  way  of  compensation  for 
services  which  had  been  and  were  to  be  ren 
dered. 


6 

It  was  not  the  intent  of  the  parties  to  become  co 
partners  or  to  conduct  the  business  as  such. 

The  agreement  shows  that  the  so-called  His 
tory  Company  was  to  be  incorporated. 

Upon  incorporation  ten  shares  of  stock  were 
to  be  delivered  to  Mr.  Stone,  in  lieu  of  the  in 
terest  conveyed  by  Mr.  Bancroft. 

It  was  not  the  intention  to  convey  a  one- 
tenth  interest  in  the  History  Company  and 
property  mentioned,  and  ten  shares  after  cor 
poration. 

Whether  so  or  not,  the  fact  that  the  Com 
pany  was  to  be  incorporated  and  shares  of 
stock  issued  shows  that  they  did  not  intend  to 
conduct  the  business  as  co-partners. 

Therefore,  Mr.  Stone  and  Mr.  Bancroft  did 
not  associate  themselves  together  prior  to  the 
incorporation,  for  the  purpose  of  carrying  on 
the  business  together  and  dividing  the  profits 
between  them,  in  the  sense  of  Section  2395  of 
the  Civil  Code. 

Assuming,  for  the  purpose  of  argument,  that 
the  agreement  was  one  of  co-partnership  at  the 
time  of  its  execution,  and  that  the  partnership 
was  to  continue  until  the  incorporation,  it  was 
competent  for  Mr.  Bancroft  to  agree  to  pay  his 
co-partner  three  hundred  and  fifty  dollars  per 


month,  for  devoting  his  entire  time  and  atten 
tion  to  conducting  the  business,  and  it  would 
create  a  personal  obligation  on  the  part  of  Mr. 
Bancroft  to  pay  that  salary,  and  upon  such  an 
agreement  Mr.  Bancroft  would  be  liable,  even 
though  the  concern  should  never  realize  a 
dollar,  and  even  though  its  entire  capital 
should  be  lost. 

It  is  not  stated  in  the  agreement  that  the 
three  hundred  and  fifty  dollars  should  be  paid 
out  of  the  capital,  earnings,  or  profits  of  the 
alleged  partnership. 

To  make  the  salary  payable  out  of  the  funds, 
earnings,  or  profits  of  the  concern,  would  be  at 
least  to  reduce  the  salary  of  Mr.  Sfone,  and,  if 
the  concern  should  not  be  successful,  might  de 
prive  him  of  any  salary  at  all. 

A  partner  has  a  right  to  maintain  an  action 
against  a  partner  upon  a  contract  of  this  kind, 
as  he  would  have  upon  a  promissory  note. 

He  had  no  cause  of  action  against  the  cor 
poration,  not  having  any  contract  with  it. 

The  contract  is  between  Mr.  Stone  and  Mr. 
Bancroft,  requiring  Mr.  Stone  to  render  his  ser 
vices  to  the  History  Company. 

"  If  A  contracts  with  B  to  make  a  coat  for  C, 
"  A  must  pay  for  it,  though  C  wears  it." 


8 

Addison  on  Contracts,  Vol.  1,  3rd  Am. 

Ed.,  Sec.  38,  p.  72;  8th  Ed.,  p.  70. 
C.  C.,  Sec.  1965. 

The  contract  of  Mr.  Bancroft  created  no  obli 
gation  on  the  part  of  the  History  Company  to 
pay  the  salary.  If  the  History  Company  had 
never  been  incorporated  Mr.  Bancroft  would 
have  been  liable  on  the  contract. 

Mr.  Bancroft  had  entire  control  of  the  His 
tory  Company  before  its  incorporation,  and  its 
officers  after  incorporation.  Before  incorpora 
tion  he  could  have  dissolved  the  alleged  part 
nership  and  could  have  closed  the  business  at 
any  time,  but  that  would  not  release  him  from 
his  obligation  on  the  contract. 

The  corporation  might  fail  in  business.  It 
might  be  dissolved  and  go  out  of  existence,  and 
upon  proceedings  for  a  dissolution  the  claim  of 
Mr.  Stone  for  salary  could  not  be  regarded  as  a 
debt  of  the  corporation. 

Who  then  would  be  liable  for  his  salary,  or 
for  a  breach  of  the  contract  of  employment? 
We  apprehend  that  it-  would  be  Mr.  Bancroft, 
the  other  party  to  the  contract. 

It  is  contended  by  counsel  for  the  appellant 
that  the  salary  is  payable  by  the  History  Com 
pany. 


9 
Appellant's  Brief,  page  14. 

We  have  already  shown  that  Mr.  Stone  had 
no  contract  whatever  with  the  History  Com 
pany  and  that  the  corporation  was  not  liable 
to  him. 

Nor  was  he  authorized  to  pay  himself  out  of 
any  money  belonging  to  the  corporation. 

It  is  contended  by  counsel  for  appellant 
(appellant's  Brief,  page  14,  1st  paragraph), 
"  That  defendant  did  not  undertake  to  pay  the 
"  plaintiff  the  salary  stipulated  in  the  agree- 
"  ment,  and  both  plaintiff  and  defendant 
"  agreed  that  plaintiff's  salary  should  be  $350 
"  per  month,  which  salary  was  of  course,  to  be 
"  paid  by  the  History  Company." 

Of  course  an  agreement  might  have  been 
made  between  the  plaintiff  and  the  defendant, 
that  the  plaintiff  should  rely  upon  the  earnings 
of  the  corporation  for  his  salary,  provided  the 
corporation  would  sign  it,  but  the  difficulty  in 
this  case  is,  that  they  did  not  make  that  kind 
of  an  agreement. 

Counsel,  however,  say  that  of  course  it  was  to 
be  paid  by  the  History  Company,  but  neither 
the  parties  nor  the  History  Company  agreed 
that  it  should  be  so  paid. 

There  is  not  a  word  in  the  agreement  which 


10 

indicates  or  intimates  that  the  History  Com 
pany,  should  pay  any  part  or  portion  of  the 
salary  named  in  the  agreement. 
.  The  language  is:  "  The  salary  of  said  Stone 
ls  shall  he  three  hundred  and  fifty  dollars  per 
"  month." 

There  is  no  reference  to  payment  out  of  any 
fund,  or  by  any  party  except  H.  H.  Bancroft. 
Can  that  language  be  regarded  as  a  stipula 
tion  that  he  should  look  for  payment  to  any 
fund  or  to  any  person  other  than  Mr.  Ban 
croft? 

Mr.  Stone  agreed  to  render  his  services  in  the 
manner  required  by  the  contract,  and  that  is 
all  he  stipulated  to  do,  and  all  other  parts  of 
the  agreement  were  stipulations  and  promises 
on  the  part  of  Mr.  Bancroft. 

Can  it  be  contended  that  the  language  used 
was  not  an  assurance  and  agreement  on  the 
part  of  Mr.  Bancroft  that  Mr.  Stone  should  re 
ceive  three  hundred  and  fifty  dollars  per 
month? 

Was  it  not  a  promise  that  he  should  be  paid 
that  amount?  Is  there  any  difference  between 
saying,  "  the  salary  of  the  said  Stone  shall  be 
"  three  hundred  and  fifty  dollars  per  month," 
and  saying,  "  the  said  Stone  shall  be  paid 


11 

"  three  hundred  and  fifty  dollars  per  month?" 
In  the  hitter  ca*e  would  any  one  contend  that 
Mr.  Bancroft  was  not  liable  for  the  payment? 

If  Mr.  Bancroft  had  said:  "  I  hereby  employ 
"  N.  J.  Stone  as  manager  of  the  History  Com- 
;<  pany,  for  the  period  of  ten  years,  and  the 
<l  salary  of  the  said  Stone  shall  be  three  hun- 
"  dred  and  fifty  dollars  per  month,"  could 
such  language  be  construed  to  mean  that  the 
History  Company  was  to  pay  it  and  that  Mr. 
Bancroft  was  not? 

Counsel  proceed  (Brief,  page  14.  last  clause 
of  first  paragraph):  "  It  will  hardly  be  ques- 
"  tioned  that  from  the  date  of  the  agreement, 
"  the  parties  were  to  share  in  the  profits  and 
'*  losses  of  the  business  in  proportion  to  their 
"  respective  interests." 

The  answer  to  this  is,  that  the  written  agree 
ment  contains  no  such  provision.  Nor  do  we 
think  that  it  can  be  fairly  implied  from  any 
language  contained  therein  that  Mr.  Stone  was 
to  share  in  the  losses  of  the  business  in  pro 
portion  to  his  interest. 

But  even  if  he  was,  it  would  make  no  differ 
ence  in  his  right  to  recover  three  hundred  and 
fifty  dollars  per  month  from  some  one.  The 
only  question  is  whether  he  could  recover  that 


12 

salary  from  some  one  who  had  not  entered  into 

ft 

any  contract  with   him,  or  from   some  one  who 
had. 

It. 

THE  DEMURRER  TO  THE  COMPLAINT  WAS 
PROPERLY  OVERRULED. 

It  is  contended  by  the  appellant  (Appellant's 
Brief,  page  11),  that  the  demurrer  interposed 
by  the  defendant  should  have  been  sustained: 

"  First.  Because  the  complaint  did  not  state  facts 
"  sufficient  to  constitute  a  cause  of  action." 

We  do  not  see  how  this  contention  can  be 
supported.  The  contract  is  between  the  plain 
tiff,  Stone,  and  the  defendant,  Bancroft.  The 
parties  agreed  upon  the  amount  of  salary  to  be 
paid.  The  language  of  the  agreement  is,  "  The 
"  salary  of  the  said  Stone  shall  be  three  hun- 
"  dred  and  fifty  dollars  per  month." 

If  the  contract  had  expressly  provided  that 
the  services  were  to  be  rendered  directly  to  Mr. 
Bancroft,  and  the  contract  contained  the  same 
language,  could  there  be  any  question  as  to 
the  liability  of  Mr.  Bancroft  to  pay  the 
salary? 

The  fact  that  the  agreement  required   that 


13 

the  services  were  to  be  rendered  to  a  third  per 
son  does  not  alter  the  case. 

Addison   on   Contracts,  Vol.    1,  3rd  Am. 

Ed.,  Sec.  38  p.  72. 
Addison   on   Contracts,  Vol.    1,  8th  Ed., 

p.  70. 

C.  C.,  Sec.  1965. 
Craig  vs.  Fry,  68  Cal.,  363. 

The  corporation  might  receive  the  benefit  of 
the  services,  and  yet  Mr.  Bancroft,  by  reason 
of  his  written  promise,  be  liable  for  the  pay 
ment  of  the  salary. 

In  this  case,  however,  at  the  time  of  the  ex 
ecution  of  the  agreement,  Mr.  Bancroft  was  the 
owner  of  ninety  per  cent,  of  the  property  and 
business  In  fact,  there  was  no  one  to  be  bene 
fited  at  that  time  but  Mr.  Bancroft. 

The  complaint  stated  a  cause  of  action.  It 
is  shown  by  the  agreement  and  by  the  allega 
tions  of  the  complaint  that  the  plaintiff  had 
performed,  and  that  the  defendant  had  refused 
and  neglected  to  perform,  and  that  defendant 
had  failed  to  pay,  from  a  certain  date,  the 
salary  agreed  upon. 

"  Second.     That  the  complaint  was  ambiguous, 
1  unintelligible  and  uncertain,  in  that  it  did  not 


14 

"  appear  whether  the  corporation  referred  to  in  the 
"  agreement  was  ever  formed  or  not.'1 

That  could  make  no  difference  as  to  the  lia 
bility  of  the  defendant. 

The  plaintiff  could  not  perform  the  services 
for  the  corporation  until  after  incorporation. 

The  service  was  to  begin  at  the  date  of  the 
agreement  and  the  plaintiff  was  to  serve  the 
then  so-called  History  Company  until  the  in 
corporation.  If  the  company  was  never  incor 
porated,  it  could  not  affect  the  agreement  be 
tween  the  plaintiff  and  the  defendant. 

"  Third.  That  it  did  not  appear  what  services 
''  were  performed  by  plaintiff." 

The  allegation  in  the  complaint  that  the 
plaintiff  had  faithfully  performed  the  terms 
and  conditions  of  the  contract,  on  his  part  to 
be  kept  and  performed,  was  a  sufficient  allega 
tion  of  performance  by  him. 

The  agreement  set  forth  in  the  complaint 
showed  clearly  what  he  was  to  do.  and  taking 
this  with  the  allegations  of  performance,  there 
could  be  no  uncertainty  or  ambiguity  as  to 
what  services  were  to  be  performed. 

"  Fourth.  That  it  did  not  appear  from  the 
"  complaint  whether  the  services  were  performed  for 
"  the  defendant  or  for  the  History  Company ." 


15 

The  agreement  set  forth  in  the  complaint 
and  the  allegation  of  performance  were  quite 
sufficient  to  inform  the  defendant  upon  this 
point. 

In  support  of  his  demurrer,  it  is  stated  by 
appellant  (Appellant's  Brief,  page  11): 

'  It  is  to  be  remembered   that  the  action  is 

'  not  for  the  breach   of  the  contract,  and   that 

;'  the  complaint   does   not   allege  any  damage, 

4  but,  on    the  contrary,  it  alleges   performance 

:'  of    the    agreement    for    which    the    plaintiff 

"  claims  a  stipulated  compensation." 

We  agree  with  counsel  that  it  is  not  an 
action  for  breach  of  contract,  in  the  general 
sense,  but  it  is  an  action  on  the  contract 
for  the  amount  due  thereon  and  remaining 
unpaid. 

The  contract  is  still  in  force  and  the  plain 
tiff  is  under  obligation  to  obey  a  call  to  per 
form  his  duties  thereunder. 

The  salary  was  to  be  paid  monthly.  Sup 
pose  there  was  no  question  whatever  about  per 
formance  on  the  part  of  the  plaintiff,  or  on  the 
part  of  the  defendant,  except  as  to  the  pay 
ment  of  the  salary.  Would  not  the  plaintiff 
have  the  right  at  the  end  of  each  and  every 
month  to  demand  his  salary  under  the  terms 


16 

of  the  agreement;  and,  if  refused,  would  he  not 
have  the  right  to  bring  suit  therefor,  or  would 
he  have  to  wait  until  the  end  of  the  term, 
namely,  ten  years,  before  he  could  draw  any 
salary,  or  enforce  its  payment? 

III. 

THE  PLAINTIFF  ON  HIS  PART  FULLY  AND  FAITH 
FULLY  KEPT  AND  PERFORMED  ALL  THE  TERMS  AND 
CONDITIONS  OF  THE  CONTRACT. 

The  defendant  directed  the  election  of  the 
plaintiff  as  vice-president  and  director  of  the 
corporation,  in  order  to  enable  him  to  manage 
and  conduct  the  business  referred  to  in  the 
agreement. 

A  by-law  of  the  History  Company,  adopted 
immediately  after  its  incorporation,  to  which 
the  defendant  assented  in  writing,  fixed  the  sal 
ary  of  the  vice-president  at  three  hundred  and 
fifty  dollars  per  month. 

This  was  all  under  the  direction  of  the  de 
fendant,  and  was  a  means  adopted  by  him  to 
place  the  plaintiff  in  a  position  to  manage  and 
conduct  the  business  referred  to  in  the  agree 
ment. 

This  did  not  cancel  the  contract  between  the 
plaintiff  and  the  defendant. 


17 

The  corporation  and  its  officers  were  the 
agents  of  Mr.  Bancroft.  Every  act  of  the  cor 
poration  and  its  officers  was  directed  by  him. 

The  salary  which  he  agreed  to  pay  he  caused 
to  be  paid  by  the  corporation  up  to  the  1st  day 
of  July,  1892,  and  after  that  date  he  ordered 
the  Treasurer  of  the  corporation  not  to  pay  the 
salary,  which  orders  were  fully  obeyed. 

It  made  no  difference  to  the  plaintiff  who 
paid  his  salary,  but  after  the  date  last  men 
tioned  the  corporation,  under  the  direction  of 
the  defendant,  ceased  to  pay  him  his  salary, 
and  refused  to  accept  his  services,  and  plaintiff 
was  then  compelled  to  look  to  his  contract  with 
the  defendant. 

The  plaintiff  faithfully  performed  the  duties 
assigned  him  as  long  as  he  was  permitted  to  do 
so.  This  was  shown  by  the  fact  that  $90,000 
in  dividends  were  paid  in  1888;  $105,000  in 
1889;  $85,000  in  1890,  and  sufficient  in  1891  to 
make  the  total  amount  of  dividends,  together 
with  two  of  $5000  each  that  were  declared  in 
1892,$290,000. 

Trans.,  pp.  22-3,  fols.  60-2. 

After  the  plaintiff  was  deposed  from  the 
office  of  Vice-President  and  prevented  from 


18 

conducting  and  managing  the  business,  as  he 
had  theretofore,  no  dividends  were  ever  made 
or  declared. 

Trans.,  p.  80,  fol.  234. 

The  plaintiff  did  not  quit  the  service  of  the 
defendant  or  of  the  History  Company,  and 
never  refused  to  perform  the  services  required 
by  the  contract;  but,  on  the  contrary,  called  at 
the  office  of  the  company  regularly  for  months, 
prepared  to  discharge  his  duties. 

After  May,  1892,  the  plaintiff,  visited  the 
office  of  the  Company  and  attempted  to  dis 
charge  his  duties,  and  continued  to  do  so  up  to 
the  31st  of  December,  1892. 

Trans.,  p.  34,  fol.  94. 

In  July,  1892,  the  plaintiff  being  at  the 
office,  went  into  the  room  of  the  defendant  to 
speak  to  him,  but  was  pushed  out  of  the  door 
by  the  Vice-President  in  the  presence  of  the 
defendant. 

Trans.,  p.  31,  fol.  86. 

The  plaintiff,  on  the  31st  day  of  December, 
1892,  visited  the  office  of  the  Company,  for  the 
purpose  of  performing  his  duties,  but  was  pre- 


19 

vented  from  doing  so.  He  made  application 
repeatedly  to  both  Dorland  and  Morrison,  Sec 
retary  and  Vice-President  respectively,  for  in 
structions  as  to  what  he  should  or  should 
not  do. 

He  was  informed  by  Morrison  that  he  had 
no  right  there.  Dorland  informed  him  that  he 
had  been  instructed  to  take  away  the  letters 
from  him. 

Trans.,  pp.  34-5,  fols.  94-7. 

It  was  impossible  for  the  plaintiff  to  do  any 
work  for  the  reason  stated  by  him. 

Trans.,  p.  35,  fol.  99. 

Where  the  plaintiff  says: 

"  I  ceased  to  go  there  for  the  reason  that  my 
"  desk  was  taken  up  stairs,  and  kept  there  for 
"  several  days,  and  then  brought  down  again, 
"  and  put  in  the  center  of  the  aisle,  where 
"  I  could  only  stand  up  by  it,  and  it  was  put 
"  where  I  couldn't  get  any  light,  or  put  a  chair 
"  to  sit  upon  by  it,  and  in  a  draft  from  the 
"  door.  I  could  not  do  any  work  there  where 
"  the  desk  was  put,  because  there  was  no  chair 
"  there,  and  I  could  not  work  because  I  had 
''  nothing  to  work  with.  I  couldn't  see,  and  it 


20 

"  was  in  the  draft  from  the  door.  There  was 
"  not  sufficient  light,  either  artificial  or  natural, 
"  to  permit  a  person  to  write  or  to  see  their 
"  writing.  When  I  found  that  condition  of 
"  things,  I  quit  going  there,  but  before,  doing 
"  so,  about  that  time,  I  went  up  and  served 
''  notice  upon  Mr.  Borland,  a  verbal  notice.'' 

Trans.,  p.  36,  fols.  100-2. 

"  I  demanded  of  him  that  he  permit  me  to 
go  to  work,  to  make  a  place  for  me  to  go  to 
''  work  under  my  contract,  the  contract  with 
"  defendant.  That  I  was  there  for  that  pur- 
"  pose,  and  I  wished  him  to  distinctly  under- 
"  stand  that  I  was  ready  and  willing  at  all 
''  times  to  perform  my  duties  under  the  con- 
<l  tract,  and  had  always  been  ready  and  willing 
"  to  go  to  work.  I  have  not  engaged  in  any 
"  other  business  since  that  time,  until  recently 
''  — the  middle  or  latter  part  of  1893.  It  was 
"  such  business  that  i  was  always  ready,  and 
11  am  now,  to  perform  the  contract.  1  have 
"  abandoned  the  business  I  engaged  in.  I  have 
"  not  bean  able  to  realize  a  dollar  from  it.  I 
'•  gave  this  notice  to  Mr.  Dorland  in  the  latter 
''  part  of  December,  and  the  latter  part  of  Jan- 
"  uary.  I  repeatedly  told  him  that  1  was  ready 


21 

''  to  do  the  work,  but  I  took  a  witness  on  this 
"  occasion  with  me,  a  Mr.  Drew,  who  took  the 
''  conversation  down  in  shorthand/' 

"  Borland  said  (Trans.,  p.  37,  fol.  103),  he 
"  had  been  instructed  by  defendant  not  to  let 
"  me  have  the  correspondence  and  not  to  per- 
"  mit  me  to  do  any  work  there.  He  was  Sec- 
"  retary  and  Treasurer  of  the  History  Com- 
"  pany,  and  owned  ten  shares  of  the  stock.  He 
"  was  under  the  direction  of  the  defendant." 

The  testimony  of  the  plaintiff  shows  (Trans., 
p.  33,  fol.  92),  that  he  faithfully  performed  his 
duties  up  to  May,  1892,  and  his  efforts  and  at 
tempts  to  perform  such  duties  ever  since. 

This  fact  is  also  shown  by  the  letters  of  Mr. 
Bancroft. 

Trans.,  p.  182,  fols.  539-40;  p.  183,  fol. 
542;  p.  185,  fol.  549;  p.  186,  fol.  550; 
p.  188,  fols.  556-8;  pp.  191-3,  fols. 
556-72. 

IV. 

PLAINTIFF  DID  NOT  VIOLATE  THE  CONTRACT  BY 
'ENGAGING  IN  OTHER  BUSINESS. 

The  evidence  shows  that  the  plaintiff  did  not, 
on  the  1st  day  of  July,  1892,  or  at  any  time, 


22 

engage  in  carrying  on  and  conducting  for  him 
self  and  others,  in  opposition  to  the  History 
Company,  a  business  of  the  same  kind  and 
character  as  that  carried  on  by  the  History 
Company. 

It  does  not  appear  that  the  literary  work  of 
the  Femina  Company  was  in  the  same  field  as 
that  of  the  History  Company,  or  that  it  con 
flicted  in  any  way  with  its  business. 

The  testimony  of  the  plaintiff  is  that  he 
never  realized  a  dollar  from  it. 

Trans.,  p.  36,  fol.  101. 

The  plaintiff  also  testified:  (Trans.,  p.  59, 
fol.  171):  "  Any  day  in  the  world  when  the 
"  History  Company  called  upon  me  to  come,  1 
"  was  ready  to  go;  yes,  I  said  I  hoped  to  be 
''  free,  and  1  hope  so  still." 

The  plaintiff  testified  in  relation  to  the  bus 
iness  with  Dr.  Miller: 

"  I  was  simply  engaged  in  negotiating  about 
"  the  business,  and  was  about  to  enter  under  a 
"  contract,  and  during  the  negotiations  I  had 
4<  purchased  some  things  and  become  liable  for 
u  them  under  the  expectation  of  making  a 
"  contract  with  him.  I  never  did  complete 
"  any  contract  with  him,  and  at  a  certain  stage 


'  of  the  negotiations,  I  concluded  not  to  enter 
"  into  the  business  or  any  engagement,  and 

'  having  reached  this  conclusion  I  signed  some 

'  papers,  the  drawing  of  which  I  entrusted  to 
"  my  attorney  and  the  attorneys  for  Miller,  and 
"  the  papers  that  are  introduced  here  are  what 

*  I  was  requested  to  sign  by  iny  attorney  and 
"  others,  and  that  is  the  reason  I  signed  it, 
"  trusting  in  their  judgment  to  protect  me 
"  from  all  liability  in  my  negotiations." 

Trans.,  p.  71,  fols.  206-7. 

The  bringing  of  the  suits  by  the  plaintiff 
against  the  History  Company,  referred  to 
(Trans.,  p.  72,  fols.  210-12),  is  not  material  upon 
the  question  of  the  liability  of  the  defendant, 
for  neither  the  opinion  of  the  plaintiff  or  that 
of  the  defendant,  as  to  the  effect  of  the  agree 
ment,  is  of  any  consequence  whatever,  where 
the  written  agreement  is  clear  and  explicit 
upon  the  point. 

The  plaintiff  testified  (Trans.,  p.  58,  fols.  167- 
8):  "While  I  was  at  work  on  this  book  of 
"  '  Femina,'  I  considered  the  contract  set  out 
"  in  the  complaint  in  this  action  as  binding 
"  upon  me  I  considered  that  the  History 
"  Company  was  entitled  to  call  on  me  at  any 


24 

"  time.  I  have  always  been  ready,  and  am 
"  ready  to-day,  to  render  services,  and  consider 
"  that  the  History  Company  was  entitled  to 
"  call  upon  me  any  day  to  perform  services  as 
"  manager  for  it,  and  it  was  so  understood  by 
41  Dr.  Miller,  that  I  would  make  no  arrange- 
"  ment  with  him  that  was  not  subject  to  the 
''  call  of  the  History  Company.  I  considered 
"  that  all  the  time  1  was  with  him  this  contract 
"  was  remaining  in  full  force  and  effect  for  its 
''  full  term,  and  that  the  History  Company  was 
"  entitled  to  call  upon  me  at  any  time." 

There  was  no  violation  of  the  contract  on 
the  part  of  the  plaintiff  by  reason  of  his  rela 
tions  or  business  with  Dr.  Miller.  It  was  all 
subsubject  to  the  contract  in  question. 

So  long  as  the  defendant  or  the  History 
Company  did  not  require  the  services  of  the 
plaintiff,  or  declined  to  receive  them,  he  could 
not  force  either  to  accept  them,  but  the  defend 
ant  could  not,  by  causing  the  History  Company 
to  decline  the  services  of  the  plaintiff,  relieve 
himself  from  the  obligation  to  pay  the  salary 
as  it  fell  due,  so  long  as  the  plaintiff  was  ready 
and  willing  to  perform. 


25 
V. 

THE  DEFENDANT  DID  NOT  PERFORM  HIS  PART  OF 
THE  CONTRACT  BUT  WILLFULLY  PREVENTED  THE 
PLAINTIFF  FROM  ACTUALLY  RENDERING  THE  SER 
VICES  DESCRIBED  IN  THE  AGREEMENT. 

The  property  conveyed  by  Mr.  Bancroft  to 
Mr.  Stone,  and  the  shares  of  stock  to  be  de 
livered,  were  upon  condition  that  if  the  said 
Stone  should  fail  in  any  wise  to  carry  out  the 
agreement  or  any  part  thereof,  in  its  full  letter 
and  spirit,  then  the  property  so  conveyed  was 
to  be  forfeited  arid  to  revert  to  the  said  defen 
dant. 

The  evidence  shows  that  after  the  dividend 
of  $90,000  had  been  paid  in  1888,  the  defend 
ant,  having  full  control  of  the  corporation  and 
the  management  of  its  officers,  began  to  inter 
fere  with  the  plaintiff  and  prevent  him  from 
discharging  his  duties  as  prescribed  by  the 
agreement. 

Trans.,  p.  23,  fols.  63-5. 

The  acts  of  the  defendant,  his  treatment  of 
the  plaintiff,  his  efforts  to  prevent  him  from 
discharging  his  duties,  and  his  directions  to 
the  officers  of  the  corporation  and  knowledge 


26 

of  their  conduct  towards  the  plaintiff,  appear  in 
the  Trans.,  pp.  23-38,  inclusive. 

On  the  15th  of  May,  1892,  the  defendant 
commenced  a  suit  under  the  forfeiture  clause 
contained  in  the  agreement  to  recover  the 
stock  conveyed  by  the  defendant  to  the  plain 
tiff  mentioned  in  the  agreement,  and  the  divi 
dends  which  the  plaintiff  had  received  thereon, 
and  charged  the  plaintiff  with  a  violation  of 
the  agreement. 

Finding  the  suit  unavailing,  he  dismissed 
the  same  and  nothing  more  has  been  heard 
of  it, 

Trans.,  p.  30. 

Almost  every  means  within  the  power  of  the 
defendant,  and  he  was  seemingly  all-powerful, 
were  used  to  prevent  the  plaintiff  from  per 
forming  his  part,  of  the  agreement  and  com 
pelling  him  to  quit  the  service,  in  order  that 
the  defendant  could  -enforce  the  forfeiture 
clause  of  the  agreement  against  him. 
.  The  deiendant  was  responsible  for  the  acts 
of  the  corporation  and  its  officers,  because  they 
were  but  the  agents  of  the  defendant  for  the 
purpose  of  carrying  on  his  own  business. 

The  officers  and  servants  of  the  corporation, 
with  the  knowledge  and  consent  of  the  defend- 


27 

ant,  and  b}^  his  direction,  were  impertinent  and 
insulting,  and  tried  in  every  way  to  prevent 
the  plaintiff  from  performing  his  duties. 

The  defendant  actually  participated  in  some 
of  these  acts,  and  it  is  plain  that  many  of  the 
acts  of  the  corporation  servants  and  agents 
were  with  his  consent,  and  under  his  actual 
direction. 

The  plaintiff  informed  the  defendant  of  the 
treatment  which  he  received  at  the  hands  of 
the  corporate  officers,  and  their  interference 
with  him  in  the  performance  of  his  duties. 

The  testimony  of  every  witness  called  on  the 
part  of  the  plaintiff  shows  the  indignities 
which  were  heaped  upon  the  plaintiff,  and  that 
it  was  impossible  for  him  to  manage  and  con 
duct  the  business  under  the  circumstances. 

The  evidence  shows  that  the  plaintiff  was,  by 
the  direction  of  the  defendant,  deposed  from 
his  position  as  Vice-President  and  manager  of 
the  business,  and  that  others  were  put  in  his 
place. 

Trans.,  pp.  70-1,  fols.  202-5. 

It  is  evident  that  the  defendant  did  not  in 
tend  to  make  any  order,  either  dismissing  the 
plaintiff  from  his  service,  or  the  service  of  the 
History  Company. 


28 

His  plan  was  to  force  the  plaintiff  to  quit  or 
commit  a  breach  of  the  contract,  so  that  the 
defendant  could  take  advantage  of  the  forfeit 
ure  clause  of  the  agreement,  and  this  purpose 
is  also  shown  by  the  suit  above  referred  to. 

He  never  did  dismiss  or  discharge  the  plain 
tiff. 

Trans.,  p.  81,  fol.  230. 

See  the  testimony  of  the  defendant  (Trans., 
p.  172,  fols.  508-9),  where  he  says: 

"  I  never  discharged  or  dismissed  the  plain- 
"  tiff  from  the  service  of  the  History  Company. 
"  That  question  never  came  up." 

The  plaintiff  was  present  at  a  meeting  of  the 
Board  of  Directors  in  November,  1892,  when 
an  assessment  was  levied. 

Morrison,  in  the  presence  of  the  defendant, 
arose  to  put  the  plaintiff  out  of  the  room.  He 
opened  the  door,  stood  by  the  plaintiff,  and  at 
tempted  to  put  his  hand  on  him.  Plaintiff  said 
he  had  as  good  a  right  to  be  there  as  Mr.  Mor 
rison,  whereupon  the  question  was  referred  to 
the  defendant,  who  said  that  he  (Morrison) 
could  throw  plaintiff  out  of  the  window  as  far 
as  he,  defendant,  was  concerned. 

Trans.,  p.  33,  fols.  90-1. 


29 

The  order  levying  the  assessment  having 
been  passed,  the  defendant,  with  others,  started 
to  leave  the  room,  but  defendant  came  back 
and  said  to  the  Secretary  of  the  History  Com 
pany,  namely,  Mr.  Borland,  "Uon't  you  pay 
"  any  attention  to  that  thing  sitting  over  there 
"  in  the  corner,"  and  went  out  of  the  room. 

Trans.,  p.  33,  fol.  92. 

The  treatment  which  the  plaintiff  received 
at  the  hands  of  the  defendant  and  officers  of 
the  corporation  was  hardly  such  as  would  be 
expected  by  a  man  who  was  to  conduct  the 
business  of  the  concern. 

Not  only  were  his  offers  to  perform  refused, 
but  positive  orders  were  given  not  to  permit 
him  to  do  any  work  there. 

From  the  evidence  in  the  case,  can  there  be 
any  doubt  or  question  as  to  the  purpose  and 
intent  of  defendant  to  prevent  the  plaintiff 
from  performing  his  part  of  the  agreement, 
and  to  take  advantage  of  the  forfeiture  clause 
and  avoid  the  payment  of  the  salary? 


30 

VI. 

PERFORMANCE. 

An  offer  in  good  faith  to  perform  on  the 
part  of  the  plaintiff  is  equivalent  to  per 
formance,  where  the  services  were  declined  or 

refused,  or   performance    prevented  hy  the   de- 

« 

fend  ant. 

The  defendant  and  the  History  Company 
had  a  perfect  right  at  any  time  to  decline  the 
services  of  the  plaintiff.  That  would  not  re 
lease  the  -defendant  from  his  obligation  to  pay 
the  salary  for  the  term  agreed  upon.  He  would 
have  the  right,  however,  to  call  upon  the  plaintiff 
at  any  time  to  resume  the  performance  of  his 
duties.  The  plaintiff  did  not  quit,  hut  simply 
obeyed  the  order  of  the  defendant  and  the  His 
tory  Company,  but  at  the  same  time  both  were 
informed  that  he  was  always  ready  and  will 
ing  to  perform  any  services  that  might  be  re 
quired  of  him. 

Simply  declining  for  a  time  to  accept  the 
service  would  not  be  a  breach  of  the  contract 
or  give  the  plaintiff  a  cause  of  action.  The 
plaintiff  was  never  notified  by  the  defendant 
that  he  was  relieved  from  his  obligations  under 
the  contract  and  that  his  services  would  not  be 


31 

required  in  the  future,  and  hence  was  bound  to 
hold  himself  in  readiness  to  perform  them  un 
der  penalty  of  the  forfeiture  of  his  stock  and 
perhaps  the  dividends  which  had  been  paid 
thereon. 

Mr.  Bancroft  testifies  that  he  never  did  dis 
charge  the  plaintiff. 

Trans.,  p.  172,  fols.  508-9. 

The  plaintiff  testifies  that  he  never  quit,  but 
was  always  ready  and  willing  to  perform.  The 
mere  fact  that  his  services  were  declined  for  a 
time  did  not  terminate  the  relation  of  the  de 
fendant  as  employer,  or  release  him  from  his 
obligation  to  the  plaintiff. 

The  ease  of  Webster  vs.  Wade,  19  Cal.,  292,  we 
think  is  decisive  of  this  case. 

If  the  defendant  did  discharge,  or  if  his  con- 
duet  and  treatment  could  be  regarded  as  a  dis 
charge  of,  the  plaintiff,  before  the  termination 
of  the  term  of  service  mentioned  in  the  con 
tract,  he  would  still  be  liable  for  the  salary 
agreed  upon. 

Webster  vs.  Wade,  supra. 

The  questions  of  fact — namely,  whether  the 
plaintiff  performed,  or  whether  he  was  pre- 


32 

vented  from  performing  by  the  defendant — 
were  passed  upon  by  tbe  jury,  and  we  contend 
that  the  evidence  was  ample  to  support  the 
verdict  upon  those  questions. 

If  there  was  a  substantial  conflict  in  the  evi 
dence  upon  these  points,  the  rule  is  well  set 
tled  that  the  verdict  of  tbe  jury  and  the  order 
of  the  Court  denying  the  motion  for  a  new 
trial  are  conclusive. 

VII. 

SUCCESSIVE  ACTIONS  ON  THE  SAME   CONTRACT. 

Successive  actions  may  be  maintained  upon 
the  same  contract  or  transaction  whenever, 
after  the  former  action,  another  cause  of  action 
arises  therefrom. 

C.  C.  P.,  Sec.  1047. 

When  several  claims  payable  at  different 
times  arise  out  of  the  same  contract  or  trans 
action,  separate  actions  can  be  brought  as  each 
liability  accrues. 

Am.  &  Eng.  Ency.  of  PI.  &  Prac.,  Vol.  I, 
pp.  154-5,  notes  1  and  3. 

In  this  case  the  plaintiff  had   the  right  to 


33 

maintain  an  action  for  eacli  month's  salary 
after  it  became  due,  and  to  join  several  of 
such  causes  in  one  action.  Otherwise,  he 
would  be  compelled  to  wait  for  his  salary  until 
the  end  of  the  term — ten  years. 

THE  ORDER  DENYING  DEFENDANT'S  MOTION 
FOR  A  NEW  TRIAL  SHOULD  BE  AFFIRMED. 

DEFENDANT'S  EXCEPTIONS. 

Exceptions  J¥os.  1  and  2  (Trans.,  pp.  19  and  20). 
This  testimony,  if  error,  was  harmless.  It 
was  not  erroneous,  but  simply  explained  the 
relations  of  the  parties  prior  to  the  execution 
of  the  agreement.  The  work  done  by  Mr, 
Stone  before  that  time  is  expressly  referred  to 
therein,  and  this  testimony  simply  gave  some 
of  the  details.  It  gives  the  record  of  the 
History  Company,  the  duties  assigned  to  the 
plaintiff  under  the  contract,  in  what  capacity 
he  acted,  and  when  he  was  superseded. 

Exception  No.  3  (Trans.,  p.  22,  fol.  60). 

The  evidence  sought  by  the  question  tended 
to  prove  performance  on  the  part  of  the  plain 
tiff,  and  shows  the  motive  on  the  part  of  Mr. 
Bancroft  to  prevent  such  performance  and  to 


34 

take  advantage  of  the  forfeiture  clause  of  the 
agreement. 

The  special  ground  of  objection  made  by 
counsel  was  that  it  would  make  no  difference 
whether  the  corporation  paid  dividends  or 
whether  the  business  was  a  profitable  or  a  los 
ing  one. 

If  the  theory  of  counsel  is  correct,  that  the 
plaintiff  was  to  be  paid  out  of  the  profits  or 
earnings  of  the  corporation,  the  testimony  is 
favorable  to  the  appellant,  and  therefore  could 
do  him  no  harm. 

Exception  No.  4  (Trans.,  p.  23,  fol.  63). 

This  exception  is  not  well  taken.  The  testi 
mony  was  direct  upon  the  question  of  perform 
ance  by  the  plaintiff,  and  prevention  of  per 
formance  by  the  defendant. 

Exception  No.  5  (Trans.,  p.  24,  fol.  65). 

The  question  related  to  the  conduct  of  the 
defendant  in  preventing  the  plaintiff  from  per 
forming  his  contract. 

The  plaintiff  had  the  right  to  perform  his 
duties  in  the  ordinary  way,  and  any  act  of  the 
defendant  tending  to  obstruct  him  was  relevant 
to  the  question  of  performance. 


35 

Exceptions  Nos.  6  and  7  (Trans.,  pp.  26-7,  fols. 
71-3). 

The  question  related  to  the  application  of 
the  plaintiff  to  Mr.  Borland,  the  secretary  and 
treasurer  for  the  payment  of  his  salary.  The 
objection  was  upon  the  ground  that  the  reply 
of  Mr.  Dorland  was  not  binding  upon  the  cor 
poration. 

The  corporation  was  a  mere  agency  for  the 
transaction  of  the  defendant's  business.  He 
was  the  president  and  had  full  control.  Its 
officers  were  under  his  direction.  The  treas 
urer  was  his  agent  and  obeyed  his  orders.  It 
appears  that  when  directed  to  pay  the  salary 
of  the  plaintiff  he  did  so,  and  when  directed 
not  to  pay  it,  he  obeyed  that  order. 

All  the  evidence  shows  that  he  was  acting 
under  the  orders  of  the  defendant,  and  was  his 
agent. 

The  matter  of  paying  or  refusing  to  pay  was 
within  the  scope  of  his  duties  as  treasurer  of 
the  corporation  and  as  agent  of  the  defendant, 
and  his  statements  concerning  payment  or  re 
fusal  to  pay,  made  at  the  time,  are  binding 
upon  his  principal. 

Greenleaf  on  Evidence,  14th  Ed.,  Vol.  I, 
Sec.  113. 


36 

Green  vs.  Ophir  C.   S.  &  G.  M.    Co.,  45 

Gal.,  522. 
Tait  vs.  Hall,  71  Gal.,  150. 

If  error,  it  was  harmless.  It  is  admitted 
that  both  the  corporation  and  the  defendant 
refused  to  pay. 

The  defendant  moved  to  strike  out  the  fol 
lowing  answer  as  being  a  conclusion  of  the  wit 
ness,  and  on  the  further  ground  that  the  de 
fendant  was  not  bound  by  it  unless  he  gave 
the  direction. 

Trans.,  pp.  26-7,  fols.  72-3. 

(A.)     The  boy  in  the  office  was  forbidden  to 

keep  any  letters  for  me. 

This,  in  our  opinion,  is  not  a  conclusion  of 
the  witness,  but  a  plain  statement  of  fact. 

The  ruling  of  the  Court  upon  the  question 
was  proper. 

C.  C.  P.,  Sec.  1834. 

The  evidence  subsequently  admitted  in  the 
case  proved  conclusively  that  the  defendant 
directed  the  action  of  all  the  servants  and 
agents  of  the  corporation.  The  evidence  is 
direct  and  overwhelming  that  the  defendant 


37 

did  prevent  the  plaintiff  from  performing  his 
duties,  and  therefore  this  particular  part  could 
do  the  defendant  no  harm. 

Exception  No.  8  (Trans.,  p.  29,  fol.  80). 

The  evidence  was  direct,  and  the  conduct  of 
the  defendant  towards  the  plaintiff  in  the  mat 
ter  of  performance  was  relevant.  If  error,  it 
was  harmless,  for  it  was  on  a  point  upon  which 
the  evidence  is  overwhelming. 

Exception  No.  9  (Trans.,  p.  31,  fol.  85). 

This  exception  is  on  the  same  footing  with 
Exception  No.  8. 

Exceptions  Nos.  10,  11,  and  12  (Trans.,  p.   31, 
fol.  87). 

The  questions  were  relevant  to  the  motive  of 
the  defendant  to  drive  the  plaintiff  out  of  the 
corporation,  to  acquire  his  stock,  to  force  him 
to  quit  the  service  of  the  defendant  and  the 
corporation  and  prevent  him  from  performing 
his  contract. 

Exception  No.  13  (Trans,  p.  34,  fol.  96). 

Mr.  Morrison  was  the  Vice-President  and  Dor- 
land  was  the  Treasurer  of  the  corporation,  and 
the  acts  and  statements  of  the  Vice-President 


38 

and  Treasurer  were  binding  upon  the  corpora 
tion  within  the  scope  of  their  duties. 

Greenleaf  on  Evidence.  14th  Ed.,  Vol.  I, 

Sec.  113. 
Green  vs.  Ophir  C.  S.  &  G.  M.  Co.,  45  Gal., 

522 
Tail  vs.  Hall,  71  Gal.,  150. 

Both  of  these  officers  were  the  agents  of  Mr. 
Bancroft.  Mr.  Bancroft  directed  them,  as  shown 
by  all  the  evidence  in  the  case.  It  is  harmless, 
because  it  is  admitted  throughout  that  the  cor 
poration  and  the  defendant  declined  and  re 
fused  to  accept  the  services  of  the  plaintiff. 

The  ruling  of  the  Court  was  proper  under 
Section  1034  of  the  Gode  of  Civil  Procedure. 

Exception  No.  14  (Trans.,  p.  37,  fol.  103). 

This  exception  stands  upon  the  same  ground 
as  Exception  No.  13. 

Exception  No.  15  (Trans.,  p.  37,  fols.  104-5). 

The  question  was  proper.  It  tended  to  show 
the  relation  between  Borland  and  the  defend 
ant  and  the  statements  of  Borland  were  bind 
ing  upon  the  defendant. 

See  authorities  last  above  cited. 


39 


Exception  No.  16  (Trans.,  p.  39,  fol.  111). 
This  exception  was  not  well  taken.  The  ob 
jection  was  that  the  testimony  was  irrelevant 
and  immaterial.  It  was  an  admission  of  Mr. 
Bancroft,  and  related  to  the  ability  of  the 
plaintiff  and  his  faithful  performance  of  the 
contract. 

Exceptions  Nos.  17,  18,  19,  20,  21  (Trans.,  pp. 

72-85,  fols.  209-251). 

As  these  exceptions  have  not  been  referred  to 
in  the  appellant's  Brief,  we  take  it  that  they 
have  been  abandoned. 

Exception  No.  22  (Trans.,  p.  86,  fol.  252). 

This  was  competent  on  the  question  of  the 
performance  of  the  contract  by  the  plaintiff. 

Exception  No.  23  (Trans.,  p.  106,  fol.  311). 

The  question  was  material  and  relevant  as 
bearing  upon  the  question  of  whether  or  not 
the  defendant  prevented  the  plaintiff  from 
performing  his  contract. 

Exception  No.  24  (Trans.,  p.  110,  fol.  323). 

This  question  was  relevant  and  material. 
The  conversations  related  to  getting  rid  of  Mr. 
Stone  and  putting  him  out  of  the  business. 


40 

Exception  No.  25  (Trans.,  p.  113,  fols.  332-8). 

The  question  was  relevant  and  material  as 
showing  the  purpose  and  conduct  of  Mr.  Ban 
croft  with  reference  to  performance  by  Mr. 
Stone. 

The  same  may  be  said  of  Exceptions  Nos. 
26,  27,  28,  29,  30,  31,  and  32  (Trans.,  pp.  114- 
120,  fols.  336-352). 

Exception  No.  33  (Trans.,  p.  159,  fol.  471). 

The  evidence  was  relevant  and  material  to 
contradict  the  witness  and  to  show  his  rela 
tions  with  the  defendant. 

Exception  No.  34  (Trans.,  p.  203,  fol.  602). 

This  exception  seems  to  bo  abandoned  by 
appellant,  as  no  reference  is  made  to  it  in  his 
Brief. 

Exception  No.  35  (Trans.,  p.  207,  fol.  615). 

This  evidence  was  relevant  and  material  to 
contradict  defendant  and  to  show  his  feeling 

o 

against  the  plaintiff. 

It  shows  his  desire  to  embarrass  the  plaintiff 
and  his  efforts  to  prevent  him  from  performing 
his  duties  under  the  contract. 


41 

Exception  No.  36  (Trans.,  p.  209,  fols.  621-4). 

The  plaintiff  having  called  Dr.  Miller,  who 
testified  that  plaintiff  had  not-  paid  him  a  cer 
tain  sura  of  money  charged  for  personal  ser 
vices  to  plaintiff's  boy,  it  was  competent,  rele 
vant,  and  material  for  plaintiff  to  contradict 
that  testimony. 

Exceptions  Nos.  37  and  38  (Trans.,  p.  215,  fol. 
637;  p  226,  fol.  67-). 

These  exceptions  seem  to  be  abandoned,  as 
counsel  make  no  reference  to  them  in  their 
Brief. 

Exception  No.  39  (Trans.,  p.  227,  fol.  673). 

That  part  of  the  charge  excepted  to,  we  con 
tend,  correctly  states  the  law. 

Webster  vs.  Wade,  19  Cal.,  292. 

Exception  No.  4Q  (Trans.,  p.  227,  fol.  674). 

That  part  of  the  charge  excepted  to  correctly 
states  the  law.  It  was  most  favorable  to  the 
defendant,  and  he  was  not  injured  thereby. 

The  instruction  is  supported  by  DeCamp  vs. 
Hewitt,  43  Am.  Rep.,  211. 


42 

Exception  No.  41  (Trans.,  p.  228,  fol.  676). 

The  exception  is  not  well  taken.  The  in 
struction  states  the  law. 

Webster  vs.  Wade,  supra. 

Exception  No.  42  (Trans.,  p.  229,  fol  ,  680). 

This  instruction  is  also  supported  by  the  case 
of  Webster  vs.  Wade,  supra. 

Exceptions  Nos.  48,  44.  and  45  (Trans,  pp   229- 

230,  fols.  681-684) 

Are  abandoned,  as  no  reference  is  made  to 
them  in  counsel's  Brief. 

Exceptions  Nos.  46,  47,  and  48  (Trans.,  pp.  230- 

231,  fols.  684-685). 

These  exceptions  are  not  well  taken.  The 
rule  of  law  is  correctly  stated  in  the  charge.  It 
could  not  injure  the  defendant. 

Exception  No.  48  A. 

We  find  no  exception  numbered  in  this  way 
in  the  Transcript,  but  identifying  it  by  the 
folio  (Trans.,  fol.  687),  we  contend  that  the  in 
struction  was  properly  refused.  The  question 
of  whether  the  agreement  was  fully  performed 
bv  the  defendant  was  one  of  fact. 


43 

Exception  No.  49  (Trans.,  p.  232,  fol.  688). 

This  instruction  was  properly  refused  by  the 
Court  for  the  reasons  stated.  Neither  the 
agreement  nor  evidence  warranted  such  an  in 
struction. 

Exception  No.  50  (Trans.,  p.  232,  fol.  690). 

This  request  was  properly  refused.  It  does 
not  state  the  law. 

Webster  vs.  Wade,  supra. 
The  instruction  as  modified  was  correct. 

Exception  No.  51  (Trans.,  p.  233,  fol.  692.) 

The  request  was  properly  refused  and  the  in 
struction  as  given  by  the  Court  states  the  law 
most  favorably  for  the  defendant,  and  he  could 
not  have  been  injured  thereby. 

Exception  No.  52  (Trans.,  p.  234,  fols.  694-5). 

The  request  did  not  state  the  law.  As  mod 
ified,  the  instruction  was  correct. 

Webster  vs.   Wade,  supra. 

Exception  No.  53  (Trans.,  p.  234,  fol.  696). 
The  request  does  not  state  the  law. 
Webster  vs.  Wade,  supra. 


44 

Exception  No.  55  is  not  referred  to  in  the  Brief 
of  appellant,  and  therefore  we  presume  it  is 
abandoned. 

Exception  No.  56  evidently  was  not  the  excep 
tion  referred  to  in  appellant's  Brief  (page  46), 
but  from  the  folio  we  presume  that  Exception 
No.  55  was  intended.  (Trans  ,  pp  235-6,  fols. 
699-701). 

The  request  does  not  state  the  law,  but  the 
instruction  as  modified  by  the  Court,  stated 
the  law  most  favorably  for  the  defendant,  and 
he  was  not  injured  thereby. 

Counsel  for  appellant  have  made  no  refer 
ence  to  the  assignment  of  error  contained  in 
the  Transcript  as  to  the  insufficiency  of  evi 
dence  to  justify  the  verdict,  and  we  therefore 
presume  that  it  has  been  abandoned. 

THE  APPELLANT  (BRIEF,  PAGE  49)  AS 
SIGNS  AS  ERROR  THAT  "THE  VERDICT 
"  WAS  AGAINST  LAW." 

"All  the  testimony  showed,  and  the  plaintiff 
"  himself  admitted  and  testified,  that  the  ser- 
"  vices  claimed  to  have  been  performed  by  him 
"  were  performed  for  the  History  Company, 
"  and  not  for  the  defendant." 

We  think  counsel  is  mistaken  in  saying  that 


45 

all  the  testimony  showed  that  the  services  were 
performed  for  the  History  Company,  and  not 
for  the  defendant. 

The  testimony  of  the  plaintiff  was  as  follows 
(Trans.,  p.  36,  fols.  109-101): 

"  I  demanded  of  him  (Borland)  that  he  per- 
'  mit  me  to  go  to  work,  to  make  a  place  for 
"  me  to  go  to  work  under  my  contract — the 
"  contract  with  defendant.  That  I  was  there 
'  for  that  purpose,  and  I  wished  him  to  dis- 
'  tinctly  understand  that  I  was  ready  and  will- 
'  ing  at  all  times  to  perform  my  duties  under 
'  the  contract,  and  always  had  been  ready  and 
"  willing  to  work." 

See  also  Trans.,  page  48,  fol.  137,  where  he 
says: 

"I  looked  at  it  as  I  was  to  receive  that 
"  money  under  my  contract.  From  the  date 
;<  of  the  formation  of  the  History  Company 
"  down  to  1892,  the  business  was  largely  under 
"  my  control." 

See  also  page  51,  fol.  146: 

"  Q.  Then  did  you  regard  yourself  as  under 
"  the  control  of  .defendant  at  that  time? 

*'A.  Defendant  always  directed  the  History 
"  Company. 


46 

"  Q.  Were  you  working  for  defendant  at 
"  that  time? 

"A.  No;  I  presume  I  was  working  for  the 
"  History  Company. 

"Q  And  at  all  times  from  the  organization 
"  of  the  History  Company,  in  1886  down  to 
"  1892,  you  were  working  for  the  History  Com- 
"  pany? 

"  A.  (Trans.,  p.  52,  fol.  148).  I  was  work- 
"  ing  nominally  for  the  History  Company,  but 
"  I  was  working  for  defendant  under  the  con- 
"  tract." 

We  apprehend  that  it  is  unnecessary  to  cite 
any  further  testimony  of  the  plaintiff  upon 
this  point,  as  that  evidence  is  sufficient  to  sus 
tain  the  verdict  rendered. 

The  judgment  and  order  denying  the  motion 
of  the  defendant  for  a  new  trial  should  be  af 
firmed. 

Respectfully  submitted. 

REDDY,  CAMPBELL  &  METSON, 

Attorneys  for  Respondent. 


STONE   o.  BANCROFT. 


lion  and  support  of  the  hoisting  tackl--. 
ic  task  of  setting  up  or  rigging  tlu^e 
lives,  and  of  safely  maintaining  then.. 
a  part  of  the  duty  of  plaintiff's  t'ello'v 
>yes,  the  defendants  were  not  liable  o 
tiff  for  injuries  which  might  have  iv- 
1  to  him  from  a  negligent  performance 
>at  duty.  These  propositions  arc  n  t 
questioned.  But  it  is  strenuous! 
I  that  the  evidence  adduced  upon  the 
trial  pr'-sents  a  different  state  of  I'.-ici:  . 
•stablishes  that,  the  riggers  of  the  ves- 
ere  not  fellow  servants  of  the  injured 
A  most  careful  examination  of  the 
nony  fails  to  support  this  claim.  It 
1  be  profitless  to  set  forth  at  length  the 
nations  of  the  different  witnesses,  but 
allowing  brief  quotation  from  the  testi- 

of  plaintiff  serves  as  a  fair  illustration 
:  "The  foreman  of  the  stevedore  firm 

a  gang  of  men.  and  takes  them  on 
[  the  ship.  He  directs  four  or  five  to  go 
id  rig  the  vessel. -the  gear,— and  just 
;>n  as  the  gearing  is  finished  we  all  start 
:>rk.  That  is  the  usual  practice."  In 
of  this  evidence,  and  of  the  opinion  up- 
le  former  appeal,  where  the  questions 
laborately  considered,  the  judgment  is 
led. 


[-ONE  v.   BANCROFT.      (S.   P.   171.) 
erne  Court  of  California.     May  21,  189t;.i 

LA.CT— PAKTNKKSHIP    OK    EMPLOYMENT— AC 
TION  FOK  SALARY. 

.A  contract  between  plaintiff,  S.,  and  de 
nt,  B.,  recited  that  B.  was  conducting  a 
ihing  business  under  the  name  of  the  H. 
ibout  to  be  incorporated,  and  that,  in  con- 
ttion  of  the  valuable  services  rendered  by 
connection  therewith,  B.  sells  and  assigns 
a  tenth  interest  in  said  company,  on  the 
ring  conditions:  S.  is  to  devote  all  liis 
for  not  less  than  10  years  to  the  pub- 
>n  and  sale  of  the  works  which  the  II. 
lay  take  up.  On  the  incorporation  of  the 
x,  one-tenth  of  the  shares  shall  be  issued 
;  but,  if  he  fails  to  carry  out  his  agree- 

said  one-tenth  interest  shall  be  forfeited 

provided  that,  in  case  of  the  death  of  S. 
s>  expiration  of  five  years,  he  having  ful- 

his  agreement  to  that  time,  then  one- 
if  said  one-tenth  interest  shall  become  the 
rty.  unconditionally,  of  the  heirs  of  S. 
salary  of  The  said  S.  shall  be  :v>.~"iO  per 
i.  //(/</,  that  this  was  not  a  contract  <il' 
ership,  but  of  hiring. 

.  Under  such  contract.  B.  is  liable  to  S. 
is  salary,  though  the  H.  Co.  receives  the 
it  of  his  services. 

.  One  properly  sues  on  his  contract  of 
»yment  for  his  salary,  rather  than  for  dam- 
for  breach  thereof,  where  he  has  not  been 
irged.  and  has  held  himself  in  readiness, 
h  he  has  rendered  no  services,  because  no 

has   been   offered   him. 

tartment  1.     Appeal  from  superior  court, 
a  Costa  county;  Joseph  P.  Jones.  Judge, 
ion  by  N.  J.  Stone  against  H.  H.  Ban- 
Judgment  for  plaintiff.     Defendant  ap- 
Affirmed. 


E.  J.  McCutcheon,  for  appellant.  Reddy, 
Campbell  &  Met  son,  for  respondent. 

<;AR(H.'TTE,  J.  This  action  is  brought  to 
recover  upon  a  written  contract  for  14  months' 
salary,  at  the  rate  of  $350  per  month,  com 
mencing  upon  January  1,  1892.  The  verdict 
of  the  jury  was  in  favor  of  plaintiff,  and  de 
fendant  appeals  from  the  judgment  and  order 
denying  his  motion  for  a  new  trial. 

A  general  demurrer  was  interposed  to  the 
complaint,  and  also  a  special  demurrer  to  the 
point  that  the  complaint  was  ambiguous,  un 
certain,  and  unintelligible  in  various  particu 
lars.  The  consideration  of  this  demurrer  leads 
us  to  an  examination  of  the  contract  made 
by  these  parties,  for  that  contract  is  set  out 
in  full  in  the  complaint.  The  material  parts 
thereof  recite:  ''This  agreement,  made  in  San 
Francisco.  California,  by  H.  H.  Bancroft  and 
N.  J.  Stone,  witnesseth:  That  in  considera 
tion  of  the  valuable  services  done  by  the  said 
Stone  in  conducting  the  publication  and  sale 
of  the  historical  works  of  the  said  Bancroft, 
the  business  formerly  being  conducted  as  the 
Bancroft  Works  Department  of  A.  L.  Bancroft 
&  Co..  but  now  being  done,  and  shortly  to 
be  incorporated  under  the  laws  of  California, 
as  the  History  Company,  the  said  Bancroft 
hereby  sells  and  assigns  to  the  said  Stone  a 
one-tenth  interest  in  the  said  History  Compa 
ny,  plates,  paper,  stock,  money,  outstanding 
accounts,  or  other  property  of  said  company, 
upon  the  following  conditions:  The  said  X. 
J.  Stone  is  to  devote  his  whole  time  and  best 
energies,  so  far  as  his  health  and  strength 
shall  permit,  for  a  period  of  not  less  than 
ten  years  from  the  date  of  this  agreement, 
to  the  publication  and  sale  of  the  historical 
works  of  H.  H.  Bancroft,  and  of  such  other 
works,  and  conduct  such  other  business,  as 
may  be  from  time  to  time  taken  up  and  enter 
ed  into  by  said  History  Company.  The 
said  Stone  agrees  not  to  enter  into  or  engage 
in,  directly  or  indirectly,  any  other  mercantile 
or  manufacturing  business,  or  any  other  busi 
ness  or  occupation  which  shall  in  any  wise 
absorb  his  mind  and  strength,  or  interfere 
with  his  interest  or  efforts  on  behalf  of  the 
said  History  Company  during  the  said  term 
of  ten  years.  Upon  the  incorporation  of  the 
History  Company,  one-tenth  of  the  whole 
number  of  shares  shall  be  issued  and  delivered 
to  the  said  N.  J.  Stone;  but  should  the  said 
Stone  fail  in  any  wise  to  carry  out  this  agree 
ment,  or  any  part  thereof,  in  its  full  letter 
and  spirit,  then  the  said  one-tenth  Interest  in 
the  said  History  Company  shall  be  forfeited 
and  revert  to  the  said  H.  II.  Bancroft;  provid 
ed,  and  it  is  distinctly  understood  and  agreed, 
that,  in  case  of  the  death  of  the  said  X.  J. 
Stone  before  the  expiration  of  five  years  from 
the  date  of  this  agreement,  the  said  Stone 
having  fulfilled  all  the  conditions  of  this  agree 
ment  up  to  that  time,  then  one-half  of  the  said 
one-tenth  interest  of  the  said  Stone  in  the  His 
tory  Company  shall  go  to  his  heirs,  and  be 


1070 


44  PACIFIC  REPORTER. 


their  property  unconditionally.     The  salary  of 
the  said  Stone  shall  be  $350  a  month." 

We  think  the  only  fair  interpretation  to  be 
given  this  contract  is  that  Bancroft  was  to 
pay  Stone  $350  per  month  for  his  services. 
There  is  but  a  single  theory  that  can  be  ad 
vanced  looking  to  a  contrary  construction,  and 
that  is  to  the  effect  that  this  contract  between 
Bancroft  and  Stone  constituted  them  partners 
(Stone  possessing  a  one-tenth  interest  in  the 
partnership),  and  that,  consequently,  the  sal 
ary  of  said  Stone  was  to  be  paid  by  the  part 
nership.  Upon  a  mere  cursory  examination 
of  the  contract,  it  is  plainly  evident  that  it 
does  not,  and  was  never  intended  to,  create  a 
partnership  between  these  two  parties.  This 
is  patent  from  the  fact  that  it  was  contem 
plated  in  the  writing  itself  that  in  the  near 
future  the  "History  Company"  was  to  be  in 
corporated.  It  is  doubly  apparent  when  we 
consider  that  the  one-tenth  interest  in  the 
property  given  by  Bancroft  to  Stone  failed  to 
vest  any  absolute  title  in  him,  but  was  depend 
ent  upon  conditions,  and  liable  to  be  forfeited 
and  revert  to  Bancroft  at  any  moment.  That 
Stone  had  no  such  interest  in  this  business  as 
to  constitute  him  a  partner  is  further  made 
plain  when  we  look  at  the  provision  of  the 
contract  wherein  it  is  expressly  stipulated 
that,  if  Stone  should  die  within  five  years 
from  its  date,  then  only  one-half  of  the  one- 
tenth  interest  should  pass  to  his  heirs.  To 
hold  these  parties  partners  under  the  agree 
ment  would  make  Stone's  salary  dependent 
upon  the  profits  of  the  business.  There  is 
nothing  contained  therein  to  indicate  any  such 
intention,  and  it  is  certainly  not  so  provided. 
We  conclude  that  the  contract  should  be  con 
strued  as  a  contract  of  hiring  of  Stone  by 
Bancroft  at  an  agreed  price  of  $350  per  month. 
There  are  no  other  matters  of  law  raised  by 
the  demurrer  of  sufficient  importance  to  de 
mand  our  attention. 

Within  a  few  months  after  the  aforesaid 
agreement  was  entered  into,  the  History 
Company  was  incorporated,  with  a  capital 
stock  of  100  shares,  10  of  which  were  issued 
to  Stone,  in  pursuance  of  the  agreement,  and 
he  was  thereupon  elected  vice  president  of 
the  corporation.  Prior  to  the  agreement  with 
Stone,  and  the  subsequent  incorporation, 
Bancroft  was  the  sole  owner  of  the  business, 
conducting  it  under  the  name  of  the  History 
Company.  For  several  years  after  incorpo 
ration,  the  business  progressed  amicably  and 
prosperously,  and  then  differences  arose.  No 
salary  was  forthcoming,  and  this  litigation 
resulted.  It  is  now  insisted  by  appellant 
that,  during  the  14  months  covered  by  this 
litigation,  respondent  is  not  entitled  to  any 
salary,  for  the  reason  that  he  performed  no 
service.  It  must  be  borne  in  mind  that  this 
action  is  not  one  for  damages  based  upon  the 
breach  of  a  contract  of  hiring,  but  is  an  ac 
tion  based  upon  the  contract  itself,  upon  an 
express  promise  to  pay.  and  in  this  regard 
the  complaint  was  advisedly  framed,  for  the 


evidence  of  both  the  plaintiff  and  defe: 
expressly  shows  that  lie  (Stone)   was- 
discharged  from  his  employment;    an 
was  hired  for  a  term  of  10  years  at  a 
ly  salary,  until  he  was  discharged  by 
ployer,   or  voluntarily  gave   up   the  * 
inent,  we  know  of  no  legal  reason  v 
employer's  promise  to  pay  is  not  bindi 
enforceable  in  an  action  at  law.     T'I 
dence  may  well  be  said  to  be  conflic: 
1o  the  amount  of  work  done  by  plaint 
ing  the  term  covered  by  the  complai 
the  action  of  the  jury,  followed  by 
cision  of  the  trial  court,  as  to  these  n 
is   binding  upon   us.      And,   even  coi 
that   during   a    great    portion    of    thi 
plaintiff  was  not  working  at  all,  yet 
was  ready  and  willing  to  work  at  aL 
if  work  had  been  offered,  and  no  wor 
offered,  and  he  had  not  been  discharge 
the  contract  was  in  full  force,  and  hi 
of  action  upon  it  cannot  be  gainsaid, 
no  defense  to  an  action  upon  the  c< 
under  such  circumstances  to  say  that 
tiff  has  not  performed  his  duties  there 
It  was  said  in  the  early  case  of  Web 
Wade,  19  Gal.  292:     "In  the  present  ca. 
steamer  upon  which  Collins  was  em; 
as  steward  was  laid  up  by  the  defenc  -i 
pursuance   of  a   contract   made   by   1 
that  effect  with  other  parties;    but  t: 
fendant  did  not  notify  Collins  that  he  ^ 
no  longer  employ  him,  and  Collins  con 
at  all  times  ready  to  perform  the  servi 
quired  by  the  contract.     The  mere  lay 
of  the  steamer  did  not,  of  course,  ten 
the  relation  of  the  defendant  as  emplc 
release  him-  from  his  obligations  to  the 
ard  [Collins]."     It  was  further  said  a 
case  that  a  discharge  of  the  employe  w 
cause  did  not  defeat  an  action  upon  th 
tract.     But  it  would  seem  that  in  later 
the  true  rule  has  been  recognized  to  b« 
an  action  in  damages  ror  the  breach 
proper  remedy  in  such  a  case.    Bancrof 
president  of  the  corporation,  and  it  i; 
dent  that  neither  he  nor  the  History  C< 
ny  wanted  the  plaintiff  to  assist  in  th< 
duct   of  the   business.      At   the   same 
plaintiff  was  not  discharged,  and  there  5 
dence  in  the  record  to  indicate  that  tt 
teution  of  Bancroft  was  not  to  discharge 
but  rather  to  make  his  position  as  ac 
ploy§  so  unpleasant  and  disagreeable 
cause  him  to  withdraw  from  the  contrac 
der  which  he  began  his  labors.    The  i 
petty  annoyances  to  which  he  was  subj 
by  defendant  can  only  be  accounted  for 
such  ground.     The  reason  for  this  cour 
conduct  may  possibly  be  found  in  a  c 
upon  Bancroft's  part  to  cause  Stone's 
drawal  from  the x  firm  without  legal  e 
for  such  withdrawal  would  have  result 
the  forfeiture  and  reversion  of  Stone's 
to  his  benefit,  as  provided  in  the  agreei 
There  is  evidence  in  the  record  pointii 
the  direction  indicated;    but,   whatever 


PEOPLE  v.  11ANGOD. 


1071 


re  been  Bancroft's   reason   in  not  openly 

J  directly  discharging  Stone,  it  is  inuua- 

ial,  for  the  fact'  remains  that  he  was  never 

charged,  and  the  further  fact  remains  that 

never  voluntarily  withdrew  from  the  ein- 

yinent,   or   relinquished   his  claims   under 

i  contract,  and  those  are  the  salient  fads 

h  justify  this  action.     The  many  cases 

by  appellant  holding  that,  if  a  servant 

•rongfully  discharged,  his  remedy  is  by 

iges    upon   the   breach   of  the  contract, 

no   weight   here,   for  there   is   no   dis- 

•  rge  in  this  case. 

•  point  is  made  that,  if  plaintiff  rendered 
ic,  such  service  was  rendered  to  the  His- 
Compauy,    and    not   to   the    defendant. 
Uancroft   and   the   History   Company 
to  its  incorporation  were  actually  one, 
practically  one  after  its  incorporation, 
thus    service   rendered   to   the   History 
)any   was  in  effect  service  rendered  to 
roft  himself,  still,  in  order  to  show  the 
ness  of  appellant's  contention  in  this  re- 
,  we  are  not  even  forced  to  that  posi- 
It  is  in  no  way  material  to  this  case  to 
mine  who  received  the  benefit  of  Stone's 
•es.     He  was  hired  by  Bancroft  to  per- 
labor  in  the  publication  of  certain  liter- 
,orks,  and  Bancroft  was  to  pay  his  sal- 
Stone  was  to  do  this  work  under  the 
u-t,  and  whether  Bancroft  or  the  His- 
inpany  or  some  one  else  got  the  ben- 
f  his  labor  is  a  matter  immaterial,  as 
earing  upon  Bancroft's  liability. 
I.  ere  are   many  exceptions  taken  to  the 
;s  of  the  trial  court  in  the  admission 
ejection  of  evidence;    but,  upon  an  ex- 
ition  of  them,  we  find  a  majority  not 
'    taken,  and  others,   even  if  meritorious 
•'ie   abstract,    still   are   of   minor   impor- 
and  not  prejudicial.     Neither  can  we 
liiat  plaintiff  violated  his  contract  by  en- 
iu   other  business  during   this   time, 
matter  was  fairly  submitted  to  the  jury 
the  evidence  and  the  law,  and  a  finding 
against  appellant's  contention. 
h   complaint   is    made  to   the  instruc- 
giveu  to  the  jury  as  to  the  law  of  the 
We  will  not  review  many  of  them  in 
but,    as   fairly    illustrative   of   appel- 
position,  we  cite  the  following:     "(1) 
i  find  from  the  evidence  that  the  said 
i    Stone  performed  the  services  required 
i  by  said  contract,  or  that  he  was  will- 
id  ready  at  the  time,  and  has  contin- 
•illing  and  ready,  and  in  the  manner 
I  by  said  agreement,  to  perform  said 
>s,   but  was  prevented   from  doing  so 
Defendant  or  under  his  directions,  you 
find    in    favor   of   the   plaintiff.      (2) 
is  testimony  tending  to  show  that  the 
iff   was  not  discharged   from   etnploy- 
i niler  said  agreement,  either  by  the  de- 
u    or   the    History    Company.      Under 
tate  of  facts,  the  plaintiff  was  simply 
o  hold  himself  in  readiness  to   per- 
ich   services   as   may   have   been   re 


quired  of  him  by  the  said  defendant  or  the 
History  Company.  If  you  find  from  the  evi 
dence  that  he  was  not  required  or  allowed 
by  either  the  said  company  or  the  said  de 
fendant  to  perform  any  services,  but  held 
himself  in  readiness  to  execute  the  contract 
in  accordance  wMi  its  terms,  such  readiness 
to  perform  is  equivalent  to  performance.  t:.;> 
If  you  find  from  the  evidence  that  the  de 
fendant,  either  by  himself  or  in  conjunction 
with  others,  prevented  the  plaintiff  from  dis 
charging  the  duties  required  of  him  under 
the  said  contract,  the  defendant  cannot  com 
plain  of  the  uonperforinance  of  acts  or  du 
ties  which  lie  himself  prevented;  and  the 
plaintiff  in  such  case,  and  in  so  far  as  he 
was  prevented  from  performing  by  the  acts 
of  the  defendant,  is  entitled  to  the  salary 
mentioned  in  the  complaint,  the  same  as  if 
all  the  duties  required  by  said  contract  had 
been  performed."  Our  views  already  ex 
pressed  are  in  full  accord  with  this  law  de 
clared  by  the  trial  court.  Bancroft  testi 
fied  that  Stone  was  not  discharged,  and 
counsel  for  appellant  in  his  brief  concedes 
that  he  was  not  discharged.  There  being  no 
question  of  Stone's  discharge  from  employ 
ment  in  the  case,  the  contractual  relation  still 
existed  between  them;  and,  Stone  being 
ready  and  willing  at  all  times  to  perform  the 
services  which  he  agreed  to  perform,  he  is  in 
a  position  to  rely  upon  the  contract.  The  in 
structions  quoted  only  cover  this  principle  of 
law,  and  are  entirely  sound. 

There  is  no  substantial  merit  in  the  other 
points  made  by  appellant.  The  judgment 
and  order  are  affirmed. 


J. 


We  concur:    HARRISON,  J.;  VAN  FLEET, 


SUPREME    COURT. 
IN  BANC 

Rowe  v  Black,  rehearing  den  June  19 
Hellman  v  Merz,  same 
Stone  v  Bancroft,  same 


1.  An  indictment  for  rape  oYa  iVuiaie  under 
l^ears  old  need  not  allege  force  and  want  of 
conmut. 

Sti/Slhe  positive  statements  of  the  prosecu- 
trix  in  a  iKipe  case,  with  the  corroborative  fact. 
that  defendant  was  seen  coming  from  her  mom 
at  f>  o'clock  in  the  morning;-  is  sufficient  to  sup 
port  a  verdict  of  guilty. 

.".  The  failure  to  caution  the  jury  as  to  the 
danger  of  convicting  defendant  in  a  rape  case 
on  the  sole  testimony  of  prosecutrix  is  not  re 
versible  error,  where  defendant  does  not  re 
quest  it. 

4.  Where  the  prosecutrix  is  materially  cor 
roborated,  it  is  not  proper  to  caution  the  jury 
as  to  the  danger  of  convicting  defendant  on  the 
sole  testimonyxifprosecutrix,   and   an   intima 
tion    that    her    testimony    should    be    carefully 
scanned  is  all  that  is  warranted. 

5.  An   instruction    that   ''any   penetration," 
however  slight,   is   sufficient  in  a   rape  case,  is 
not  objectionable  beean.se  of  the  omission  of  the 
word  "sexual."  where  there  are  instructions  de 
nning  the   offense,   which,   when   read   in   con. 


Due  service  of  the  within  is  hereby  admitted 
this day  o/_ 189 


San  Francisco.     No.  171. 


H 


H 


STATE  OF  CALIFORNIA. 


N.     J.     STONE, 


Plaintiff  and  Respondent, 


VS. 


H.     H.     BA  NCRO  FT, 


Defendant  and  Appellant. 


PETITION  FOR  HEARING  IN  BANK 


EDWARD  J.  McCuxcHEN, 

Attorney  for  Petitioner. 
PAGE.  McCuxcHEN  &  EELLS, 

Of  Counsel. 


Filed  this day  of  June,.  A.  D.  1896. 

T.  H.    WARD,   Clerk, 


By 


Deputy. 


THE  SUPREME  COURT 


OF     THE 


STATE  OF  CALIFORNIA 


N.  J.  STONE, 

Plaintiff  and  Respondent, 

vs. 
H.  H.  BANCROFT, 

Defendant  and  Appellant. 


PETITION  FOR  HEARING  IN  BANK. 

To  the  Honorable,  the  Supreme  Court  of  the  State 

of  California: 

The  appellant  in  the  above-entitled  cause  re 
spectfully  prays  that  the  same  may  be  heard  and 
determined  by  the  Court  in  bank  The  case  was 
submitted  in  Department  One,  and  the  judgment 
rendered  by  that  Department  affirms  the  judgment 
below  on  grounds  which  it  is  respectfully  submitted 
are  entirely  insufficient  to  support  the  decision, 
and  which  seem  to  be  themselves  based  upon  a 
misapprehension  of  the  points  made  by  appellant. 
Aside  from  the  personal  interests  of  the  appellant 
which  are  at  stake  here,  an  important  principle  of 
the  law  of  master  and  servant  is  involved,  and  it 
is  submitted  that  this  Court  should  not  lay  down 
a  rule  which  on  principle  and  authority  is  so 
highly  questionable. 


Statement   of    the   Case   as    Made    by   the 
Plaintiff. 

The  facts  of  the  ease  as  shown  by  the  plaintiff's 
own  testimony  at  the  trial  are  as  follows: 

Prior  to  May,  1886,  defendant  was  engaged  in 
the  publication  and  sale  of  historical  works  and 
other  literary  publications  and  was  carrying  on 
business  under  the  name  of  Bancroft's  Works 
Department  of  A.  L.  Bancroft  &  Co.,  and  was  the 
owner  of  the  plates,  paper,  stock,  money,  out 
standing  accounts,  and  other  property  belonging 
to  said  business.  For  a  long  time  prior  to  May, 
1886,  the  plaintiff  had  been  employed  to  manage 
said  business  and  during  that  month  the  parties 
made  an  agreement  which  on  August  20,  1886, 
was  reduced  to  writing.  The  agreement  was  in 
these  words: 

"  This  agreement  made  in  San  Francisco,  Cali- 
"  fornia,  by  H.  H.  Bancroft  and  N.  J.  Stone,  wit- 
*'  liesseth:  That  in  consideration  of  the  valuable 
"  services  done  by  the  said  Stone  in  conducting 
"  the  publication  and  sale  of  the  historical  works 
"  of  the  said  Bancroft,  the  business  formerly  being 
"  conducted  as  the  Bancroft's  Works  Department 
"  of  A.  L.  Bancroft  &  Co.,  but  now  being  done 
"  and  shortly  to  be  incorporated  under  the  laws 
"  of  California  as  the  History  Company,  the  said 
"  Bancroft  hereby  sells  and  assigns  to  the  said 
"  Stone  a  one-tenth  interest  in  the  said  History 


"  Company,  plates,  paper,  stock,  money,  outstand- 
"  ing  accounts,  or  other  property  of  said  company, 
"  upon  the  following  conditions: 

"  The  said  N.  S.  Stone  is  to  devote  his  whole 
"  time  and  best  energies,  so  far  as  his  health  and 
"  strength  shall  permit,  for  a  period  of  not  less 
"  than  ten  years  from  the  date  of  this  agreement, 
"  to  the  publication  and  sale  of  the  historical 
"  works  of  H.  H.  Bancroft,  and  of  such  other 
"  works,  and  conduct  such  other  business  as  may 
"  be  from  time  to  time  taken  up  and  entered  into 
"  by  said  History  Company;  and  the  said  Stone 
"  agrees  not  to  enter  into  or  engage  in,  directly 
"  or  indirectly,  any  other  mercantile  or  manu- 
"  facturing  business,  or  to  any  other  business  or 
"occupation  which  shall  in  any  wise  absorb  his 
"  mind  and  strength,  or  interfere  with  his  interest 
"  or  efforts  on  behalf  of  the  said  History  Company 
"  during  the  said  term  of  ten  years. 

"  Upon  the  incorporation  of  the  History  Com- 
"  pany  one-tenth  of  the  whole  number  of  shares 
"  shall  be  issued  and  delivered  to  the  said  N.  J. 
"  Stone;  but  should  the  said  Stone  fail  in  anywise 
"  to  carry  out  this  agreement,  or  any  part  thereof, 
"  in  its  full  letter  and  spirit,  then  the  said  one- 
"  tenth  interest  in  the  said  History  Company  shall 
"  be  forfeited  and  revert  to  the  said  H.  H. 
"  Bancroft;  provided,  and  it  is  distinctly  under- 
"  stood  and  agreed,  that  in  case  of  the  death  of 


"  the  said  N.  J.  Stone  before  the  expiration  of 
"  five  years  from  the  date  of  this  agreement,  the 
"  said  Stone  having  fulfilled  all  the  conditions  of 
"  this  agreement  up  to  that  time,  then  one-half  of 
"  the  said  one-tenth  interest  of  the  said  Stone  in 
"  the  History  Company  shall  go  to  his  heirs,  and 
"  be  their  property,  unconditionally;  and  in  the 
"  event  of  the  death  of  the  said  Stone  at  any  time 
"  after  the  expiration  of  five  years  from  the  date 
"  of  this  agreement,  the  terms  hereof  having  been 
"  fully  complied  with,  then  the  whole  of  the  said 
"  one-tenth  interest  shall  belong  to  his  heirs  un- 
"  conditionally. 

"  The  salary  of  the  said  Stone  shall  be  $350  a 
"  month.  The  copyright  of  the  said  historical 
"  works  belongs  exclusively  to  the  said  Bancroft, 
"  and  shall  be  fifty  cents  a  volume  for  the  History 
"  and  Diaz,  and  twenty  cents  on  the  little  history 
"  of  Mexico. 

"  Signed  in  San  Francisco,  the  twentieth  day 
"  of  August,  1886. 

"  H.  H.  BANCROFT, 
"  N.  J.  STONE." 

Between  May,  1886  and  the  23d  day  of  Sep 
tember,  1886,  plaintiff'  and  defendant  carried  on 
the  business  referred  to  in  the  agreement  under  the 
name  History  Company,  the  plaintiff  owning  one- 
tenth  of  mid  business  and  the  defendant  the  remain- 


ing  nine-tenths.  The  salary  of  plaintiff  was  paid 
out  of  the  moneys  belonging  to  both  the  parties  and 
charged  as  an  expense  of  the  business.  (Trans., 
folio  140.)  On  the  23d  day  of  September,  1886, 
the  parties  formed  a  corporation  under  the  laws 
of  California,  called  History  Company,  to  which 
was  transferred  all  of  the  property  referred  to  in 
the  agreement,  and  from  its  formation  until  the 
commencement  of  this  action  it  carried  on  the 
business  previously  carried  on  by  plaintiff  and 
defendant. 

Immediately  after  the  formation  of  the  corpora 
tion,  the  plaintiff  received  certificates  represent 
ing  one-tenth  of  the  capital  stock  thereof.  From 
the  date  of  the  formation  of  the  corporation  until 
May,  1892,  the  plaintiff  was  a  director  and  vice- 
president  thereof;  and  from  the  date  of  the  forma 
tion  until  July,  1892,  he  acted  as  the  manager  of 
its  business.  A  by-law  of  the  History  Company 
adopted  immediately  after  its  incorporation  and  to 
which  the  plaintiff  assented  in  writing,  fixed  the 
salary  of  the  vice-president  at  three  hundred  and 
fifty  dollars  per  month.  At  all  the  times  after  the 
formation  of  the  corporation  the  salary  of  the  plain 
tiff  i.cas  paid  to  him  by  the  treasurer  thereof,  who 
was  under  his  orders.  The  salary  paid  to  the  plain 
tiff  was  treated  as  one  of  the  expenses  of  the  busi 
ness  and  ivas  always  entered  upon  the  boo/cs  of  the 
company  as  such  an  expense,  and  all  of  the  profits 


6 

which  were  divided  either  in  the  shape  of  dividends, 
or  in  any  other  ivay,  were  the  net  profits  after  the 
deduction  of  all  expenses,  including  the  plaintiff's 
salary.  (Trans.,  folio  197.)  It  is  admitted  by  the 
plaintiff'  that  his  salary  was  never  charged  to  or 
paid  by  defendant  individually.  (Trans.,  folio 
139.)  The  arrangement- at  the  time  it  was  made, 
as  understood  by  the  plaintiff',  was  that  he  was  to 
have  ten  per  cent,  of  the  entire  business  and  ten 
per  cent,  of  the  net  profits  after  all  expenses  were 
paid,  including  his  own  salary.  (Trans.,  folio  140.) 

Plaintiff  received  the  salary  of  three  hundred 
and  fifty  dollars  a  month  from  the  History  Com 
pany  until  the  end  of  June,  1892.  Before  the 
commencement  of  this  action  he  commenced  two 
suits  against  the  History  Company,  in  each  of 
which  he  sought  to  recover  three  hundred  and 

c5 

fifty  dollars,  the  first  being  for  services  rendered 
as  its  manager  during  the  month  of  July,  1892, 
and  the  second  for  services  rendered  as  its  man 
ager  during  the  month  of  August,  1892.  He  sub 
sequently  brought  this  action  to  recover  for  services 
alleged  to  have  been  actually  performed,  between  the 
1st  day  of  July,  1892,  and  the  date  when  the  com 
plaint  was  filed,  a  period  of  fourteen  months,  end 
ing  August  31,  1893. 

It  is  not  claimed  by  the  plaintiff  that  during  all 
of  the  time  for  which  he  seeks  to  recover  from  the 


defendant  for  services  rendered,  he  was  actually 
engaged  either  in  the  service  of  the  defendant  or 
the  service  of  the  History  Company.  It  is  claimed 
that  some  time  in  the  early  part  of  1892,  the  de 
fendant  determined  to  prevent  the  plaintiff  from 
performing  his  duties  as  manager  of  the  business 
of  the  corporation,  and  that  after  June,  1892,  he 
was  not  able,  by  reason  of  the  interference  of  the 
defendant  and  those  under  him,  to  perform  the 
duties  of  that  position. 

He  made  a  demand  on  Dorland,  the  treasurer  of 
the  corporation,  for  the  salary  which  he  claimed  to 
be  due  subsequent  to  June,  1892,  but  never  made 
any  demand  on  defendant.  (Trans.,  folio  152.) 
When  he  addressed  Dorland  concerning  his 
services,  he  addressed  him  as  secretary  and  treas 
urer  of  the  corporation,  and  Dorland  answered  him 
in  that  capacity.  (Trans.,  folio  170.) 

The  plaintiff  says  he  gave  notice  to  Dorland  in 
December,  1892,  and  January,  tftftfr,  that  he  was 

A 

ready  to  work.  (Trans.,  folio  101.)  He  claims  to 
have  been  at  the  office  of  the  History  Company 
nearly  every  day  up  to  the  time  of  the  demand 
made  upon  Dorland,  and  after  that  time  he  en 
gaged  in  other  business.  (Trans.,  folio  169.) 
During  the  months  of  May,  June  and  July,  1893,  he 
admits  he  ivas  giving  his  attention  to  the  publication 
of  a  ivork  called  "Femina"  in  which  he  had  ac 
quired  an  interest.  (Trans.,  folio  161.) 


8 

In  the  publication  of  the  work  called  "Femina" 
he  was  associated  with  one  Miller,  each  of  them  be 
ing  equally  interested  in  the  business.  (Trans.,  folio 
162.)  He  says  he  considered  that  during  the  time 
he  was  engaged  in  business  with  Miller  the  His 
tory  Company  was  entitled  to  call  upon  him  to 
perform  services  as  manager  for  it,  and  that  it  was 
understood  between  him  and  Miller  that  he  would 
make  no  arrangement  by  which  he  would  not  be 
subject  to  the  call  of  the  History  Company.  He 
claims  to  have  considered  all  the  time  he  was  with 
Miller  that  the  contract  set  out  in  the  complaint 
was  in  full  force  and  effect,  and  that  the  History 
Company  was  entitled  to  call  upon  him  at  any  time. 
(Trans.,  folio  168.) 

On  the  21st  day  of  October,  1893,  the  plaintiff 
and  Miller  signed  and  executed  an  instrument  in 
writing,  in  which  they  declare  that  the  partner 
ship  existing  between  John  A.  Miller,  party  of  the 
first  part,  a'nd  -Nathan  J.  Stone,  party  of  the  sec 
ond  part,  under  the  firm  name  of  the  Femina 
Company,  was  that  day  dissolved  by  mutual  con 
sent.  The  execution  of  this  document  was  wit 
nessed  by  one  of  the  counsel  for  the  plaintiff. 

The  Femina  Company  had  an  office,  and  the 
plaintiff's  name  appeared  on  the  door  a^  manager 
of  its  business.  (Trans.,  folio  186.)  That  company 
was  engaged  in  publishing  a  literary  work  and  the 


9 

History    Company    was    engaged    in     publishing 
literary  works.      (Trans.,  folio  187.) 

These  were  the  facts  as  testified  to  by  the  plain 
tiff  himself  on  the  trial;  and  yet  he  brought  this 
action  against  Bancroft  individually  on  the  written 
contract  above  set  forth  for  the  salary  of  $350  a 
month,  from  the  1st  of  July,  1892,  to  the  31st  of 
August,  1893,  alleging  full  performance;  in  the 
trial  Court  judgment  was  rendered  against  defend 
ant,  and  this  judgment  has  been  affirmed  by  the 
decision  in  Department  of  this  Court.  Should 
that  decision  stand? 

The  defendant  interposed  a  demurrer  to  the 
complaint  on  the  ground,  among  others,  that  it 
did  not  state  facts  sufficient  to  constitute  a  cause 
of  action,  and  thus  raised  the  point  that  the  contract 
was  a  contract  of  partnership,  that  Stone  was  em 
ployed  by  the  partnership,  and  subsequently  by  the 
corporation,  and  that  he  therefore  had  no  cause  of 
action  against  Bancroft. 

The  defendant  moved  for  a  new  trial  on  the 
ground  of  the  insufficiency  of  the  evidence  to 
justify  the  verdict  of  the  jury;  on  the  further 
ground  that  the  verdict  was  against  law;  and 
thirdly,  because  of  errors  of  law  occurring  at  the 
trial;  and  thereby  raised  this  question,  among 
others,  as  to  whether,  under  a  contract  of  service, 
a  servant  who  has  been  wrongfully  prevented  by  his 


10 

employer  from  performing  the  services  contemplated, 
can  bring  an  action  on  the  contract  for  his  wages 
and  truthfully  allege  full  performance. 

On  these  points,  particularly,  appellant  respect 
fully  prays  for  a  reconsideration  by  the  Court  of 
the  decision  rendered  in  Department. 

I. 

The    Demurrer    to   the    Complaint    should 
have  been  Sustained. 

A  demurrer  was  interposed  by  defendant  to  the 
complaint  in  which  it  was  claimed:  First,  that  it 
did  not  state  facts  sufficient  to  constitute  a  cause 
of  action;  and  second,  that  it  was  ambiguous,  un 
certain  and  unintelligible  in  that:  (a)  it  did  not 
appear  whether  the  corporation  referred  to  in  the 
agreement  was  ever  formed;  (b)  that  it  did  not 
appear  what  services  were  performed  by  plaintiff, 
and  (c)  that  it  did  not  appear  whether  the  ser 
vices,  if  any,  performed  by  him  were  rendered  to 
the  defendant  or  to  the  History  Company. 

Separate  assignments  were  made  as  to  ambi 
guity,  uncertainty  and  unintelligibility. 

It  is  to  be  remembered  that  the  action  is  not  for 
the  breach  of  the  contract  and  that  the  complaint 
does  not  allege  any  damage,  but,  on  the  contrary, 
it  alleges  performance  of  the  agreement,  for  which 
the  plaintiff  claims  a  stipulated  compensation. 


11 

When  the  agreement  was  executed  defendant 
was  the  owner  of  a  business  "  then  being  done  and 
shortly  to  be  incorporated  under  the  laws  of  Cali 
fornia,"  under  the  name  of  History  Company,  and 
was  the  owner  of  all  the  property  belonging  or 
appertaining  thereto.  By  the  instrument  he  "  sold 
and  assigned  to  plaintiff  a  one-tenth  interest  in  the 
said  History  Company,  plates,  paper,  stock,  money, 
outstanding  accounts,  and  other  property  of  said 
company."  (Trans.,  folio  5.)  This  is  all  defend 
ant  did  or  agreed  to  do.  There  is  nothing  execu 
tory  in  the  agreement,  so  far  as  he  is  concerned. 
The  complaint  alleges  the  execution  of  the  instru 
ment  by  him,  which  is  equivalent  to  an  allegation 
that  at  that  date  he  transferred  and  sold  to  plaintiff 
a  one-tenth  interest  in  the  property  mentioned, 
and  from  that  time  forward  plaintiff  became  and 
was  jointly  interested  with  defendant  in  the  busi 
ness,  defendant  owning  nine-tenths  and  plaintiff 
one-tenth  thereof. 

Plaintiff,  upon  his  part,  agreed  to  devote  his 
whole  time  for  ten  years  after  the  date  of  the 
agreement  to  the  business  of  the  History  Company, 
and  that  during  that  time  he  would  not  engage  in 
any  manufacturing  business,  or  any  business  that 
would  interfere  with  his  interests  in  or  efforts  on 
behalf  of  said  History  Company. 

The  obligation  imposed  by  the  agreement  upon 
plaintiff  was  to  render  service,  not  to  the  defend- 


12 

ant,  but  to  the  History  Company,  and  when  he 
alleges  that  he  has  performed  the  agreement  on  his 
part,  he  is  to  be  understood  as  saying  that  he  has 
rendered  to  the  History  Company  the  stipulated 
service.  This  service  must  have  been  rendered 
to  the  History  Company,  a  corporation,  or  to  a  co 
partnership  doing  business  under  that  name  and 
composed  of  plaintiff  and  defendant.  If  the  agree 
ment  was  so  far  executed  as  that  plaintiff  per 
formed  all  of  its  covenants  on  his  part,  the  parties 
must  have  carried  on  the  business  as  copartners, 
or  a  corporation  must  have  been  formed  to  which 
the  property  and  business  were  transferred.  If 
plaintiff  performed  any  part  of  the  agreement  be 
fore  a  corporation  was  formed,  then  it  necessarily 
follows  that  he  and  defendant  were  carrying  on 
the  business  of  the  History  Company  and  their 
relations  were  those  of  partners.  When  defend 
ant  executed  and  delivered  the  assignment  and 
transfer  to  plaintiff  the  latter  became  proprietor 
of  an  interest  in  a  going  business,  of  which  prior 
to  that  time  defendant  was  the  sole  owner.  The 
agreement  provided  for  a  continuance  of  the  busi 
ness,  to  which  the  plaintiff  was  to  devote  his  en 
tire  time  for  a  period  of  ten  years.  No  one  will 
seriously  contend  that  this  was  a  contract  of  em 
ployment  wherein  defendant  was  the  employer 
and  plaintiff  the  employee.  Defendant  did  not 
take  plaintiff  into  his  employment,  but  took  him 


13 

into  the  business,  into  the  History  Company,  and 
whereas  he  had  up  to  that  time  been  only  an  em 
ployee  of  the  defendant,  he  was  thenceforth  in 
terested  with  him  in  the  business;  in  other  words, 
was  his  partner. 

Defendant  did  not  undertake  to  pay  the  plain 
tiff  the  salary  stipulated  in  the  agreement,  but  both 
plaintiff  and  defendant  agreed  that  plaintiff's  sal 
ary  should  be  three  hundred  and  fifty  dollars  per 
month,  which  salary  was,  of  course,  to  be  paid  by 
the  History  Company.  It  will  hardly  be  ques 
tioned  that  from  the  date  of  the  agreement  the 
parties  were  to  share  in  the  profits  and  losses  of 
the  business  in  proportion  to  their  respective  in 
terests. 

Section  2395  of  the  Civil  Code  defines  partner 
ship  thus:  "  Partnership  is  the  association  of  two 
"  or  more  persons  for  the  purpose  of  carrying  on 
"  business  together  and  dividing  the  profits  be- 
"  tween  them."  The  agreement  in  this  case  ex 
pressly  stipulated  that  the  parties  were  to  carry  on 
business  together,  and  no  one  will  say  they  were 
not  to  divide  the  profits.  In  other  words,  the 
agreement  brings  them  clearly  within  the  provis 
ions  of  this  section  of  the  Civil  Code. 

It  may  be  suggested  that  the  agreement  does 
not  contain  any  express  provision  that  the  parties 
are  to  divide  the  profits  of  the  business.  In  Bloom- 
field  vs.  Buchanan,  13  Or.,  108,  it  was  held  that  it 


14 

was  not  absolutely  necessary  in  order  to  create  a 
partnership  that  the  word  "  partnership  "  should 
be  used,  "or  any  express  mention  made  in  regard 
"  to  profit  or  loss,  *  *  *  and  it  is  not  neces- 
"  sary  that  there  should  be  an  express  stipulation 
"  between  partners  to  share  the  profit  and  loss,  as 
"  that  is  an  incident  to  the  prosecution  of  their 
"  joint  business." 

In  Richards  vs.  Grinnell,  63  Iowa,  44,  Chief 
Justice  Rothrock  quotes  with  approval  the  follow 
ing  from  Parsons  on  Contracts:  "  Where  parties 
"  agree  to  enter  into  an  association  for  the  purpose 
*'  of  buying  or  selling  and  carrying  on  joint  busi- 
"  ness  indefinitely,  no  stipulation  for  dividing 
"  profit  and  loss  is  necessary,  as  that  is  an  incident 
"  to  the  prosecution  of  their  joint  business." 

It  seems  entirely  unnecessary  to  multiply  au 
thorities  on  this  point.  As  has  been  suggested, 
the  portion  of  the  contract  providing  that  "  the 
*'  salary  of  the  said  Stone  shall  be  three  hundred 
"  and  fifty  dollars  a  month,"  did  not  impose  upon 
the  defendant  an  obligation  to  pay  that  sum  or  any 
sum,  but  simply  meant  that  out  of  the  business  in 
which  the  parties  were  about  to  engage  the  plaintiff 
should  receive  the  salary  agreed  upon  by  them. 
His  salary  was  one  of  the  expenses  of  the  business 
to  be  deducted  before  the  division  of  profits,  and 
hence  he  was  himself  to  contribute  one-tenth  of 
his  compensation. 


15 

In  its  opinion  the  Department  says  on  this 
point: 

"  We  think  the  only  fair  interpretation  to  be 
"  given  to  this  contract  is  that  Bancroft  was  to 
"  pay  Stone  $350  per  month  for  his  services. 
"  There  is  but  a  single  theory  that  can  be  ad- 
""vanced  looking  to  a  contrary  construction,  and 
"  that  is  to  the  effect  that  this  contract  between 
"  Bancroft  and  Stone  constituted  them  partners 
"  (Stone  possessing  a  one-tenth  interest  in  the 
"  partnership),  and  that  consequently,  the  salary 
"  of  said  Stone  was  to  be  paid  by  the  partnership. 
"  Upon  a  mere  cursory  examination  of  the  con- 
"  tract,  it  is  plainly  evident  that  it  does  not,  and 
"  was  never  intended  to,  create  a  partnership  be- 
"  tween  these  two  parties." 

The  Court  then  assigns  the  grounds  on  which 
it  bases  its  conclusion  that  no  partnership  was  ever 
intended.  It  says,  in  the  first  place:  "This  is 
"  patent  from  the  fact  that  it  was  contemplated  in 
u  the  writing  itself  that  in  the  near  future  the 
"  History  Company  was  to  be  incorporated."  It 
is  difficult  to  see  just  what  the  Court  means  by 
this,  unless  it  argues  that  because  the  relation  be 
tween  the  parties  was  soon  to  be  changed  into 
something  else,  it  could  not,  meanwhile,  be  a 
partnership;  that  the  partnership  could  not  have 
a  beginning,  because  it  was  soon  to  have  an  end- 


16 

ing.  And  if  that  is  the  argument  of  the  Court,  it 
is  more  difficult  still  to  appreciate  its  weight. 
Whatever  inference  is  to  be  drawn  from  the  pro 
vision  in  the  contract  as  to  the  incorporation  of 
the  Company,  would  seem  to  lead  to  the  directly 
opposite  conclusion.  There  can  be  no  question 
but  what  it  was  contemplated  by  the  contract  that 
when  the  corporation  was  formed  Bancroft  and 
Stone  were  to  be  on  the  same  footing  as  stockhold 
ers  in  the  corporation,  differing  only  in  the 
amount  of  stock  held.  This  was  to  be  a  substitute 
for  the  arrangement,  that  preceded  it,  and 
what  is  more  natural  than  to  suppose  that  that 
arrangement  ,was  intended  to  be  of  an  analogous 
character  and  that  Bancroft  and  Stone  were  to  be 
copartners  until  they  should  become  fellow-stock 
holders.  It  would  be  a  new  idea  that  persons  who 
associate  themselves  in  business  with  the  ultimate 
idea  of  incorporating  are  from  this  very  fact  to  be 
regarded  meanwhile  as  something  other  than 
partners;  nor  is  it  quite  clear  what  the  Court  on 
this  line  of  reasoning  would  hold  them  to  be  prior 
to  the  incorporation.  It  is,  certainly,  not  one  of 
the  essential  elements  in  a  partnership  that  there 
should  be  an  intention  never  to  form  a  corporation. 

The  Court  continues,  secondly:  "  It  is  doubly 
"  apparent  when  we  consider  that  the  one-tenth 
"  interest  in  the  property  given  by  Bancroft  to 
"  Stone  failed  to  vest  any  absolute  title  in  him, 


17 

"  but  was  dependent  upon  conditions,  and  liable 
4<  to  be  forfeited  and  revert  to  Bancroft  at  any 
moment."  Again,  we  fail  to  see  how  the  fact  that 
by  some  contingency  Stone  might  ultimately  lose 
his  interest  in  the  property  could  affect  the  relation 
ship  which  inevitably  existed  as  long  as  that  inter 
est  continued.  This  seems  to  be  but  another  phase 
of  the  preceding  argument  that  the  partnership 
could  not  exist  because  it  might  at  some  future 
time  be  terminated.  It  is  certainly  possible  to 
make  the  continued  existence  of  a  partnership 
dependent  on  certain  conditions,  to  fix  the  time 
at  which  the  relationship  should  terminate  by  the 
happening  of  a  certain  event,  or  possibly  to  im 
pose  as  a  consequence  of  a  breach  of  the  partner 
ship  agreement  the  forfeiture  by  the  defaulting 
partner  of  his  interest  in  the  partnership  prop 
erty;  and  yet  there  could  be  no  question  mean 
while  as  to  the  continued  existence  of  the  partner 
ship.  In  Campbell  vs.  8herman,  8  N.  Y.  Suppl., 
630,  55  Hun  (N.  Y.),  609,  an  agreement  not  un 
like  the  agreement  in  question  here,  was  under 
consideration.  That  agreement  provided  for  a 
forfeiture  by  one  of  the  parties  to  the  agreement 
of  all  his  interest  in  the  concern  in  case  he  should 
fail  to  perform  his  part  of  the  contract.  The 
Court,  nevertheless,  in  the  face  of  the  contention 
by  the  opposing  side  that  the  contract  was  merely 
one  of  employment,  took  the  view  that  a  partner- 


18 

ship  had  been  created.  It  does  not  appear  that  in 
that  case  the  provision  for  a  forfeiture  was  even 
considered  as  throwing  any  doubt  on  the  exist 
ence  of  the  partnership. 

In  Petrakion  vs.  Arbeely,  26  N.  Y.  Suppl.,  731, 
23  Civil  Proc.  R.,  183,  an  agreement  was  under 
consideration  which  provided  that,  on  payment 
by  one  party  of  a  certain  sum,  as  a  contribution 
to  the  partnership  capital,  one-fourth  of  a  printing 
establishment  should  belong  to  him.  The  amount 
had  not  been  paid,  and  the  contention  was  that 
the  payment  was  a  condition  precedent  and  no 
partnership  had  been  created.  The  Court  said, 
however:  "The  existence  of  conditions  precedent 
"  to  a  partnership  agreement  is  not  presumed,  and, 
"  in  the  absence  of  some  restriction  in  the  con- 
"  tract,  the  relation  is  presumed  to  arise  at  the 
"  time  of  the  execution  of  the  articles."  So  in 
the  case  at  bar.  Stone's  performance  of  the  stip 
ulation  was  at  most  a  condition  subsequent  on  which 
his  continued  interest  in  the  partnership  de 
pended.  But  meanwhile  there  was  an  absolute 
transfer  to  him  of  a  one-tenth  interest  in  the  bus 
iness  with  the  necessary  consequence  of  a  share 
in  the  profits  and  a  responsibility  for  the  liabili 
ties. 

In  the  case  of  Hills  vs.  Bailey,  27  Vt.,  548,  it 
appears  that  the  interest  of  one  of  the  partners  in 


19 

the  firm  property  was  subject  td  complete  defeas 
ance  on  his  failure  to  make  certain  payments  to 
his  copartners,  and  that  his  copartners  who  had 
provided  the  capital  while  he  provided  the  labor 
and  skill,  had  apparently  entered  into  a  personal 
contract  to  pay  him  a  certain  sum  of  money  annu 
ally  as  his  salary.  He  sued  them  on  this  agree 
ment,  but  the  Court  held  that  the  liability  was  a 
partnership  liability. 

The  Department  continues  to  give  a  third  reason 
why,  in  its  opinion,  the  agreement  is  to  be  held  not 
a  partnership  agreement,  and  says:  "That  Stone 
"  had  no  such  interest  in  this  business  as  to  con- 
"  stitute  him  a  partner,  is  further  made  plain  when 
"  we  look  at  the  provision  of  the  contract  wherein 
"  it  is  expressly  stipulated  that,  if  Stone  should 
"  die  within  five  years  from  its  date,  then  only  one- 
"  half  of  the  one-tenth  interest  should  pass  to  his 
"  heirs."  This  seems  to  be  only  a  restatement  in 
another  form  of  the  argument  which  precedes  it, 
and  stands  or  falls  with  that.  If  Stone's  interest 
in  the  property  of  the  company  was  to  terminate 
on  a  failure  on  his  part  to  give  his  services  to  the 
company  for  ten  years,  it  would  be  natural  to 
stipulate  that  in  case  death  was  the  cause  of  his 
failure  to  perform,  the  forfeiture  should  still  be  to 
a  certain  extent  enforced.  This  is  added  as  a 
proviso,  and  is  in  fact  merely  an  added  term  of  the 
stipulation  as  to  forfeiture,  guaranteeing  to  Stone's 


20 

heirs  at  least  one-half  of  the  one-tenth  interest, 
although  Stone  should  be  prevented  by  death  from 
contributing  his  services  to  the  company  for  the 
full  period  contemplated. 

The  Court  continues  (but  whether  this  is  to  be 
regarded  as  an  additional  reason  for  construing 
the  agreement  as  something  other  than  a  partner 
ship  agreement  does  not  appear) :  "  To  hold  these 
"  parties  partners  under  the  agreement,  would 
"  make  Stone's  salary  depend  upon  the  profits  of 
"  the  business.  There  is  nothing  contained  there- 
"  in  to  indicate  any  such  intention,  and  it  is  cer- 
"  tainly  not  so  provided."  Is  it  meant  by  this  that 
the  agreement  is  not  to  be  construed  as  a  partner 
ship  agreement,  because  that  construction  would 
leave  Stone  without  any  salary  in  case  the  business 
were  unprofitable?  By  what  rule  of  law  is  the 
salary  of  a  member  of  a  partnership  made  depend 
ent  on  the  profits  of  the  partnership  business? 
Are  not  the  partners  ultimately  liable  individually 
for  the  legitimate  debts  incurred  by  the  partner- 

0 

ship,  whether  the  partnership  be  a  successful  one 
or  not?  On  the  other  hypothesis  advanced  by  the 
Court,  Stone's  salary  would  depend  on  Bancroft's 
solvency,  and  on  the  hypothesis  that  there  was  a 
partnership,  no  creditor  of  the  partnership,  whether 
an  employee  or  not,  could  suffer  as  long  as  Ban 
croft  remained  solvent.  And  even  if  the  fact  were 
that  Stone's  salary  depended  upon  the  profits  of 


21 

the  business,  we  submit  it  is  not  putting  the  case 
fairly  to  say  there  is  nothing  contained  in  the  con 
tract  to  indicate  any  such  intention.  Even  sup 
posing  that  that  were  a  necessary  consequence 
from  the  partnership  agreement,  must  a  contract 
of  partnership  enumerate  all  its  consequences  in 
order  to  create  a  partnership?  The  Court  says 
there  is  nothing  contained  in  the  contract  to  indi 
cate  any  such  intention;  and  we  feel  confident  that 
the  argument  is  answered  fully  by  the  assertion 
that  there  is  nothing  in  the  contract  either  to  in 
dicate  the  opposite  intention;  and  in  the  absence 
of  an  express  provision  imposing  upon  Bancroft 
the  payment  of  the  salary,  the  presumption  is  that 
it  was  to  be  paid  by  the  firm. 

A  case  on  all  fours  with  the  one  at  bar  and  de 
cisive  of  the  question  now  under  discussion  is 
Weaver  vs.  Upton,  7  IredelPs  Law  (N.  C.),  458. 
The  opinion  is  short  and  we  quote  it  in  full: 

"  Weaver  and  Upton,  on  the  16th  of  Decem- 
"  ber,  1840,  leased  of  one  McKenzie  a  tract  of 
"  land  for  three  years  to  mine  for  gold;  the  rent 
"  was  to  be  one-sixth  part  of  the  gold  that  should 
"  be  obtained  by  the  lessees.  On  the  27th  of 
"  December,  1841,  the  lessees  entered  into  the 
"  agreement  under  their  seals,  mentioned  in  the 
"  case.  Upton  was  to  work  twenty  hands,  and 
"  Weaver  four  hands,  '  bearing  a  proportionable 


22 

"  '  part  of  the  expense  attached  thereto.  The 
"  '  said  Upton,  of  the  first  part,  bargains  and  agrees 
"  '  to  give  me,  the  said  Weaver  of  the  second 
"  *  part,  four  hundred  and  fifty  dollars  to  manage 
"  '  the  business,  which  I  agree  to  manage  accord- 
"  '  ing  to  the  best  of  my  judgment.'  It  seems  to 
4'  us,  that  the  agreement  was  one  of  partnership; 
"  and  the  law  being  well  settled,  that  the  acting 
41  and  business  partner  is  never  entitled  to  claim 
"  pay  of  the  firm  for  his  services,  unless  he  stipu- 
"  lates  for  it  in  the  articles  of  copartnership  or 
"  otherwise;  the  parties  therefore  agreed,  that 
"  Weaver  should  manage  the  business,  and  Upton, 
"  the  other  partner,  agreed  to  give  him  $450  'to 
"  manage  the  business.'  Weaver  was  to  bear  his 
"  proportion  of  the  expense  of  managing  and 
"  working  the  mine.  The  salary  of  the  superin- 
"  tendent  was  a  part  of  the  expense  of  the  firm. 
"  And  the  firm  ought,  according  to  the  true  construc- 
"  tion  of  the  article,  to  bear  this  expense  in  propor- 
"  tion  to  the  number  of  hands  each  partner  worked 
"  in  the  mine.  The  words  *  The  said  Upton  bar- 
"  gains  and  agrees  to  give  me,  the  said  Weaver, 
"  $450  to  manage  the  business,'  only  denoted 
"  the  assent  of  Upton  that  Weaver,  although  a 
"  partner,  should  be  paid  for  his  services  $450. 
"  The  parties  were  stipulating  concerning  the  part- 
"  nership  business,  and  the  terms  on  which  it  was  to 
"  be  carried  on;  and  among  others  that  Upton  bar- 


23 

"  gained  and  agreed  to  let  Weaver  have  $450  for 
"  his  services  that  year.  It  seems  to  us  that  it 
"  would  be  against  justice  and  right,  to  construe 
"  the  covenant  to  be  an  agreement  by  Upton,  that 
"  he  would  pay  that  sum  out  of  his  own  pocket. 
"  We  think  that  it  was  an  item  in  the  expense 
"  account  of  the  firm  and  that  the  firm  should  pay 
"  it." 

The  Court  says  in  opening  that  there  is  but  a 
"  single  "  theory  that  can  be  advanced  looking  to 
a  construction  of  this  agreement  as  anything  but  a 
contract  of  service.  That  is  very  true,  and  yet  a 
single  unassailable  theory  is  better  than  a  dozen 
questionable  ones,  and  its  force  is  rather  strength 
ened  than  weakened  by  the  fact  that  it  is  a  single 
theory.  The  arguments  on  which  the  Court  sup 
ports  its  conclusion,  it  is  submitted,  amount  on 
analysis  simply  to  the  assertion  that  the  arrange 
ment  cannot  be  regarded  as  a  partnership,  because 
it  was  contemplated  that  at  some  time  in  the  future 
it  might  terminate,  either  by  the  formation  of  a 
corporation  or  by  the  failure  of  Stone  to  perform 
certain  conditions.  On  the  other  side  there  is  the 
undeniable  fact  that  the  agreement  conveyed  to 
Stone  a  one-tenth  interest  in  the  property  of  the 
concern,  with  the  inevitable  consequence,  as  we 
have  already  said,  of  a  share  in  the  profits  and  in 
the  liabilities.  Besides  this  Stone  agreed  to  take 
charge  of  the  business  for  ten  years,  and  was  to 


24 

receive  a  salary  of  $350  a  month.  If  this  is  not 
in  letter  and  spirit  a  partnership  agreement  by 
which  one  partner  contributes  the  bulk  but  not 
the  whole  of  the  capital,  and  the  other  contributes 
his  services,  it  is  difficult  to  see  what  kind  of 
agreement  could  constitute  a  partnership,  and  the 
Court  itself  bears  unconscious  testimony  to  the 
naturalness  of  this  view  of  the  relationship  be 
tween  Bancroft  and  Stone  when  it  speaks  of 
"  Stone's  withdrawal  from  the  firm,"  although  it 
had  been  so  strenuously  insisting  but  a  few  pages 
before  that  there  never  had  been  a  "firm  "  at  all. 

II 

The  Court  should  have  Granted  Defendant 
a  New  Trial. 

1.  The  evidence  showed  that  there  was  a  partner 
ship  and  that  Stone  was  employed  by  the  partnership, 
and  not  by  Bancroft.  The  verdict  was  therefore 
against  evidence  and  law. 

If  any  doubt  arose,  as  a  matter  of  law,  as  to  the 
construction  to  be  put  upon  the  agreement  by  an 
inspection  of  it,  that  doubt  would  be  solved  by  the 
plaintiff's  own  testimony  at  the  trial.  It  is  a 
familiar  rule  that  in  case  of  doubt  the  intention  of 
parties  to  an  agreement  may  be  gathered  from 
their  subsequent  conduct  in  the  execution  of  the 
contract.  Plaintiff  himself  testified  that  he  never 
looked  to  the  defendant  individually  for  the  pay- 


25 

merit  of  his  salary,  but  that  it  was  always  charged 
as  one  of  the  expenses  of  the  business,  and  that 
the  profits  of  the  business,  of  which  he  received 
one-tenth,  were  net  profits  after  the  deduction  of 
all  expenses,  including  his  own  salary.  The  sal 
ary  was  paid  to  him  by  the  cashier,  who  was  under 
his  own  control  as  well  as  the  control  of  defendant. 
He  testified  further  that  his  own  understanding 
of  the  agreement  in  suit  was  that  he  was  to  have 
ten  per  cent,  of  the  entire  business  and  ten  per 
cent,  of  the  net  profits  after  all  the  expenses  were 
paid,  including  his  own  salary.  (Trans.,  folios 
138-140.)  Again  and  again  it  appeared  in  the 
evidence  given  by  the  plaintiff,  not  merely  that 
there  was  a  History  Company  entirely  independ 
ent  of  Bancroft  himself,  but  that  the  plaintiff  re 
garded  himself  as  working  for  that  company. 
In  fact,  the  instructions  given  to  the  jury  by  the 
Court  at  the  request  of  plaintiff,  proceed  on  the 
very  assumption  of  the  independent  existence 
of  the  History  Company.  If  this  company  did 
have  an  independent  existence,  what  could  it 
have  been  before  incorporation,  if  it  were 
not  a  partnership?  We  dwell  so  long  on 
this  fact  of  there  being  actually  a  partnership,, 
because  the  Department  has  expressly  denied  it  in 
its  opinion  in  the  case,  and  has  based  its  de 
cision  on  the  non-existence  of  the  partnership. 
It  has  not  said,  what  indeed  it  could  not  say,  that 


26 

granting  the  partnership,  the  employment  of  Stone 
nnd  the  undertaking  to  pay  him  was  still  Bancroft's 
personal  agreement.  The  case  of  Weaver  vs.  Upton, 
hereinbefore  referred  to  and  cited  in  appellant's 
points  and  authorities,  is  conclusive  on  this  latter, 
point.  In  that  case  an  agreement  was  under  dis 
cussion  which  did  not  provide  eo  nomine  for  a  part 
nership  but  which  was  construed  by  the  Court  to 
be  a  partnership  agreement.  It  was  executed  by 
Weaver  and  Upton  and  contained  as  one  stipula 
tion  the  following:  "  The  said  Upton  of  the  first 
"  part,  bargains  and  agrees  to  give  me,  the  said 
"  Weaver  of  the  second  part,  four  hundred  arid 
"  fifty  dollars  to  manage  the  business,  which  I 
"  agree  to  manage  according  to  the  best  of  my 
"  judgment."  The  Court  held  that  this  was  not 
Upton's  individual  employment  of  Weaver,  but 
that  the  salary  was  an  item  in  the  expense  account 
of  the  firm,  and  should  be  paid  by  the  firm.  It  is 
submitted  that  the  contract  under  consideration  in 
that  case  was  much  stronger  against  Upton,  than 
this  contract  is  against  Bancroft;  for  there  was 
there  apparently  an  express  promise  to  pay  made 
by  Upton,  whereas  in  the  case  at  bar,  there  was, 
in  an  agreement  executed  by  both,  merely  a  gen 
eral  stipulation  that  "the  salary  of  the  said  Stone 
"  shall  be  $350  a  month." 

Toward  the  end   of   the  opinion  of  the  Court 
another  reference  is  made  to  the  contention  of  ap- 


pellant  that  the  contract  of  service  was  made  by  the 
History  Company,  and  not  with  Bancroft  person 
ally.  In  the  brief  filed  by  appellant  there  is  a 
full  discussion  of  this  question.  The  stumbling 
block  of  the  Court  has  seemed  to  be,  however,  the 
question  as  to  whether  there  had  ever  been  any 
partnership  at  all,  not  as  to  whether,  granting  the 
partnership,  the  subsidiary  agreement  for  the  pay 
ment  of  Stone's  services  was  a  personal  or  a  part 
nership  undertaking.  We  have  tried  to  show  that 
the  reasons  adduced  by  the  Court  to  show  that  no 
partnership  ever  existed  have  no  real  force;  and 
once  admitting  the  partnership,  we  think  the  Court 
cannot  question  for  a  moment  that  Stone's  services 
were  to  be  rendered  to  the  partnership,  and  sub 
sequently  to  the  corporation,  and  that  the  part 
nership  and  the  corporation  alone  were  liable  for 
his  salary.  It  seems  to  us,  then,  that  the  Court 
has  failed  to  see  the  force  of  appellant's  argument 
that  the  services  were  shown  to  have  been  ren 
dered  to  the  company  and  not  to  Bancroft  person 
ally.  The  question  being  whether  Bancroft  or  the 
partnership  had  agreed  to  pay  the  salary,  any  evi 
dence  showing  that  the  services  were  rendered, 
not  to  Bancroft  himself  but  to  the  company, 
seems  to  us  in  the  highest  degree  material;  and 
the  force  of  such  evidence  is  not  to  be  destroyed 
by  assuming  as  already  disproved  the  very  state 
of  affairs,  the  existence  of  which  it  was  introduced 


28 

to  show.  The  question  being  as  to  the  real  inten 
tion  of  the  parties  to  the  agreement,  evidence  to 
show  how  the  agreement  was  in  fact  carried  out 
must  be  given  its  due  weight.  And  if  Stone's 
services  were  in  fact  rendered  to  the  company,  and 
not  to  Bancroft  personally,  certainly  that  fact  not 
merely  tends  to  show  who  it  was  that  originally 
employed  him,  but  also  points  in  no  uncertain 
fashion  to  the  independent  existence  of  the  com 
pany  apart  from  Bancroft  himself,  which  was  one  of 
the  facts  in  issue.  The  appellant  certainly  did  not 
contend  that,  if  it  were  once  established  that  Ban 
croft  had  himself  employed  Stone  to  do  work  for 
the  partnership,  he  was  to  be  released  from  lia 
bility  because  the  work  was,  as  a  matter  of  fact, 
done  for  the  partnership;  but  he  did  contend  that, 
if  the  services  were  actually  rendered  to  the  part 
nership  and  paid  for  by  the  partnership,  then  it 
was  a  fair  inference  that  the  partnership  existed 
and  that  it  was  the  partnership  which  had  con 
tracted  for  the  services.  And  we  do  not  see  that 
anything  the  Court  says  weakens  the  force  of  this 
contention. 

And  the  Court  seems  to  disregard  the  undis 
puted  facts  of  the  case  when  it  says:  "  While 
"  Bancroft  and  the  History  Company  prior  to  its 
"  incorporation  were  actually  one  and  practically 
"  one  after  its  incorporation,  and  thus  service  ren- 
"  dered  to  the  History  Company  was  in  effect 


29 

"  service  rendered  to  Bancroft  himself,  still,  in 
"  order  to  show  the  weakness  of  appellant's  con- 
"  tention  in  this  respect,  we  are  not  even  forced  to 
"  that  position."  We  have  tried  to  show  that  the 
Court  is  forced  into  that  position,  and  a  considera 
tion  of  what  that  position  is,  becomes  of  some  im 
portance.  Does  the  Court  mean  to  say  that 
although  Bancroft  owned  but  a  nine-tenths  interest 
in  the  property  of  the  History  Company  before 
its  incorporation,  he  and  the  History  Company 
were  still  "  actually  "  one?  And  that  after  the 
incorporation,  though  he  held  but  nine-tenths  in 
the  beginning,  and  thereafter  only  eighty-five  per 
cent  of  the  capital  stock,  he  and  the  corporation 
were  "practically"  one?  And  the  conclusion  that 
the  Court  draws  from  these  statements  is  equally 
startling,  namely:  that  "service  rendered  to  the 
"  History  Company  was  in  effect  service  rendered  to 
"  Bancroft  himself,"  —that  is  to  say,  because  one 
m,an  owns  the  majority  of  the  capital  stock  of  a 
corporation,  all  the  incidents  of  its  corporate  exis 
tence  disappear,  the  minority  stockholders  are 
wiped  out  of  existence,  and  a  servant  employed  by 
the  corporation,  working  for  the  corporation,  and 
paid  by  the  corporation,  is  to  be  regarded  in  law 
and  in  fact  as  the  servant  of  the  one  man  who 
owns  the  majority  of  the  stock. 

Stone   received  one-tenth  of  the  capital  stock 
immediately  upon  the  formation  of  the  corpora- 


30 

tion,  and  shortly  thereafter  obtained  from  de 
fendant  an  additional  five  per  cent.,  from  which 
time  he  owned  fifteen  per  cent,  and  defendant 
owned  eighty-five  per  cent.  It  is  not  suggested 
by  the  Court  that  Stone's  rights  differed  from 
those  of  a  stockholder  in  any  other  corporation, 
but  to  say  that  defendant  and  the  company  were 
practically  one  is  to  entirely  ignore  Stone  as  a 
stockholder. 

Or,  if  we  take  the  other  view  that  it  was  not 
because  Bancroft  and  the  corporation  were  prac 
tically  one  that  he  was  liable  for  Stone's  salary, 
but  because  he  originally  agreed  to  pay  it,  we  are 
forced  to  a  conclusion  which  seems  to  demonstrate 
conclusively  the  unsoundnessof  the  opinion.  As  has 
been  suggested,  Stone  obtained  from  Bancroft  five 
per  cent,  of  the  capital  stock  in  addition  to  the 
one-tenth  given  him  by  the  agreement.  Supposing 
he  had  purchased  the  whole  of  Bancroft's  stock, 
would  the  latter  still  have  been  liable  personally 
for  the  salary?  If  the  construction  placed  by  the 
Department  upon  the  contract  be  correct,  the  per 
sonal  liability  of  Bancroft  did  not  and  does  not 
depend  upon  the  number  of  shares  of  the  stock 
of  the  corporation  which  he  owned.  If  defendant 
is  personally  liable  for  the  salary,  it  must  be  by 
virtue  of  the  agreement,  so  that  if  Stone  were  to 
buy  all  of  the  defendant's  stock,  although  Stone 
and  the  company  would  then  be  "  practically  " 


31 

one,  Bancroft  would  still,  on  the  Court's  theory, 
be  liable  for  the  salary.  And  we  should  have 
Bancroft,  without  any  interest  in  the  business  what 
ever,  under  obligation  to  pay  Stone  $350  a  month 
salary  for  managing  his  own  business.  This  is  the 
possible  result  of  this  agreement  between  Stone 
and  Bancroft  if  the  theory  of  the  Court  is  to  be 
adopted.  Is  it  not  more  reasonable  to  say  that  a 
construction  that  would  lead  to  such  results  cannot 
represent  the  intention  of ,  the  parties,  and  to  hold 
that  they  themselves  took  the  very  natural  view 
of  the  transaction  which  we  have  been  urging  on 
the  Court,  and  which  involves  no  such  absurdities 
as  this? 

2.  The  evidence  showed  that  the  defendant  should 
have  had  a  verdict,  because  the  plaintiff  did  not  prove 
perform-ance  of  the  contract  on  his  own  part. 

Another  contention  of  appellant  is  dismissed  by 
the  Department  on  grounds  which,  it  is  respectfully 
submitted,  are  as  inadequate  as  those  which  form 
the  basis  of  the  opinion  of  the  Court  in  regard  to 
the  nature  of  the  original  agreement. 

The  position  taken  by  appellant  is  that  an  em 
ployee  under  contract  of  service  for  a  definite 
period  and  discharged  before  the  expiration  of  the 
term,  or  prevented  by  the  employer  from  performing 
the  services,  has  his  choice  of  but  two  remedies— 
to  sue  in  quantum  meruit  for  the  value  of  the  ser- 


32 

vices  actually  performed,  or  to  set  up  a  breach  of 
the  contract  by  his  employer,  and  sue  for  damages. 
Plaintiff  in  this  action  has  admitted!}7  done  neither; 
he  has  regarded  the  contract  as  in  full  force,  has 
alleged  full  performance  of  his  part  of  the  contract, 
and  has  demanded  performance  on  the  part  of  the 
alleged  employer.  (We  shall  assume  for  the  sake 
of  the  present  argument,  on  the  theory  of  plaintiff, 
that  Bancroft  was  the  employer.)  The  undisputed 
evidence  shows,  however,  that  there  had  been  no 
actual  performance  on  the  part  of  Stone,  and  he 
advances  as  an  excuse  for  non-performance  that 
he  was  prevented  by  his  employer  from  perform 
ing.  On  this  theory  appellant  in  his  argument 
made  the  contention  above  shown,  and  supported 
the  contention  by  a  line  of  unambiguous  author 
ities. 

Stone  says  in  his  testimony  that  after  July,  1892, 
that  is  to  say,  during  the  whole  period  covered  by 
this  action,  he  was  not  able  by  reason  of  the  inter 
ference  of  the  defendant  and  those  under  him,  to 
perform  the  duties  of  his  position.  He  does  not 
say  that  there  were  no  duties  attached  to  that  posi 
tion.  He  says  his  desk  was  moved  from  place  to 
place,  and  that  he  was  subjected  to  every  indig 
nity  that  one  man  could  inflict  upon  another;  that 
his  desk  was  placed  in  a  draught,  and  he  notified 
the  secretary  of  the  corporation  that  he  could  not 
remain  unless  its  position  was  changed.  He  did 


33 

remain,  however,  for  a  long  time  after  he  had  been 
so  badly  treated.  (Trans.,  folio  204),  and  says 
that  he  was  not  discharged.  (Trans.,  folio  236). 
He  claims  to  have  visited  the  office  of  the  com 
pany  every  day  during  the  month  of  July,  1892; 
occasionally,  but  not  very  often,  during  August 
and  September,  1892;  that  he  was  there  during 
October,  but  did  not  do  much  of  anything;  that 
he  was  there  part  of  the  time  in  November,  and 
most  of  the  time  during  December.  He  went 
there  every  day  during  January,  1893,  and  every 
day  during  February,  1893,  until  he  served  a 
notice  upon  Dorland,  the  secretary  and  treasurer 
of  the  History  Company,  and  said  he  was  ready  to 
work.  (Trans.,  folios  149  to  152.)  He  claims  to 
have  been  at  the  office  of  the  History  Company 
nearly  every  day  until  he  served  the  notice  upon 
Dorland,  and  after  that  time  he  engaged  in  other 
business.  During  May,  June  and  July,  1893,  he 
admits  that  he  was  associated  with  another  man  in 
an  independent  business  (Trans.,  folios  161-162); 
but  he  says  that  he  considered  during  the  whole 
time  that  he  was  in  the  employ  of  the  History 
Company,  and  that  the  company  was  entitled  to 
call  upon  him  at  any  time  to  perform  services  as 
manager  for  it. 

The  Court  in  its  opinion  admits  that  if  the  case 
had  been  one  of  wrongful  discharge,  the  action 
could  not  have  been  maintained  in  its  present 


34 

form,  but  says  that  a  different  rule  applies  when 
the  employee  has  been  simply  prevented  from 
performing,  without  having  been  actually  dis 
charged.  The  whole  argument  of  appellant  on 
the  point,  and  all  the  cases  on  which  the  argument 
is  based,  are  dismissed  with  the  assertion  that  they 
are  not  applicable,  because  the  case  is  not  one  of 
wrongful  discharge;  and  the  position  taken  by 
respondent  and  by  the  Court  is  attempted  to  be 
supported  by  a  quotation  from  a  single  case.  It  is 
submitted,  however,  that  a  careful  consideration  of 
the  subject  will  show  that  no  sound  distinction  can 
possibly  be  made  between  the  case  where  the  servant 
is  discharged,  and  that  where  he  is  prevented  from 
performing;  that  not  only  do  the  cases  make  no 
such  distinction,  but  their  language  is  either  ex 
pressly  or  impliedly  made  applicable  to  both  cases 
indiscriminately,  and  that  the  case  cited  by  the 
Court  to  support  the  opposite  view  is  not  at  all  in 
point. 

In  the  first  place,  what  rational  distinction  can 
be  drawn  between  the  rights  of  the  employee  under 
a  contract  of  service,  where  he  has  been  wrong 
fully  discharged,  and  his  rights  where  he  has  been 
wrongfully  prevented  from  performing?  The 
Court  suggests  no  basis  of  distinction  whatever, 
the  cases  indicate  none,  and  we  are  at  a  loss  to 
advance  one,  even  for  the  purpose  of  showing  its 
unsoundness.  The  Court  admits  that  if  Stone  had 


35 

been  wrongfully  discharged,  he  could  not  have 
maintained  the  action  in  its  present  form.  What 
different  principles  are  applicable  to  the  case 
where  he  is  prevented  from  performing?  Is  the 
employer  any  the  more  guilty  of  a  breach  of  the 
contract  where  he  discharges  the  servant,  than  he 
is  when  he  prevents  him  from  performing?  Does 
a  breach  ^cfece  consequences  seem  to  be  identical 


with  those  of  another,  affect  the  rights  of  the 
parties  in  such  a  different  way,  that  in  one  case 
the  employee  may  maintain  an  action,  which 
would  not  be  allowed  in  the  other?  In  what 
better  position  before  the  law  is  a  servant  who  has 
been  prevented  from  performing  than  one  who  has 
been  discharged,  that  the  forme,r  is  to  be  allowed  to 
support  a  claim  against  the  employer  which  is  not 
permitted  to  the  latter? 

As  to  the  authorities  cited  by  the  appellant  on 
this  point,  though  unnoticed  in  the  opinion, 
it  is  only  necessary  to  consult  them  to  see 
that  they  are  directly  applicable  to  the  case  at  bar. 
Wood,  "  Master  and  Servant,'"  at  page  253,  intro 
duces  the  discussion  of  the  subject  which  is  quoted 
at  length  in  appellant's  points  and  authorities,  by 
saying:  "There  is  some  apparent  confusion  in 
"  the  doctrine,  both  of  the  English  and  the  Amer- 
"  ican  cases,  as  to  what  the  real  remedies  of  a 
"  servant  wrongfully  discharged,  or  wrongfully  pre- 
"  vented  from  performing  a  contract  of  service 


36 

'  are."  The  Court  in  its  opinion  in  the  case  at 
bar  has  adopted  Mr.  Wood's  view  as  regards  the 
remedies  of  a  servant  wrongfully  discharged;  it 
cannot  consistently  with  either  principle  or  author 
ity  reject  the  same  view,  when  the  servant  has 
been  wrongfully  prevented  from  performing.  The 
whole  discussion  of  the  subject  in  the  leading  case 
of  Howard  vs.  Daly,  61  N.  Y.,  362,  also  cited  by 
appellant,  was  based  on  the  assumption  that  the 
rights  of  a  servant  wrongfully  prevented  from  per 
forming  are  identical  in  this  respect  with  those  of 
a  servant  wrongfully  discharged.  The  complaint 
in  that  case,  as  appears  at  page  363,  set  forth  that 
the  plaintiff  "  was  prevented  by  the  defendant  and 
"  his  servants  from  acting  and  fulfilling  her  part 
"  of  the  contract,  although  she  was  then,  and  ever 
"  since  has  been,  willing  and  anxious  to  do  so." 
It  is  not  necessary  to  consider  further  the  reason 
ing  of  the  authorities.  Every  word  of  it  will  be 
found  to  be  as  applicable  to  the  case  where  the 
servant  is  wrongfully  prevented  from  performing, 
as  to  the  case  of  wrongful  discharge.  And  a  Court 
which  recognizes  the  soundness  of  the  reasoning 
and  of  the  conclusion  in  the  one  case,  as  the  De 
partment  in  its  opinion  here  has  done,  cannot,  it  is 
submitted,  consistently  refuse  to  apply  the  prin 
ciple  to  the  case  at  bar. 

To  support  its  own  position,  however,  the  Court 
has  cited  the  California  case  of    Webster  vs.  Wade, 


37 

19  CaL,  '292.  It  might  be  enough  now,  in  the  light 
of  what  has  already  been  said,  to  call  the  attention 
of  the  Court  to  the  fact  that  when  the  Depart 
ment  questioned  the  authority  of  the  case  on  the 
point  of  the  remedies  of  a  servant  wrongfully  dis 
charged,  it  destroyed  its  force  as  authority  for  the 
point  to  which  it  was  cited.  But  more  than  that, 
the  case  never  was  authority  for  the  point.  Is 
there  any  true  analogy,  much  less  identity,  between 
the  case  of  a  servant  who  does  no  work  because, 
under  the  peculiar  circumstances  of  the  case,  there 
are  no  duties  attached  to  the  position  which  he  oc 
cupies  and  the  servant  who,  although  he  holds  a 
responsible  position  in  an  active  business  doesn't  do 
a  stroke  of  work  because,  as  he  alleges,  he  is  pre 
vented  from  performing  the  unquestioned  duties  of 
his  office.  In  the  one  case,  the  servant  did  all  there 
was  to  be  done,  which  was  nothing.  In  the  other,  the 
servant  did  nothing,  though  there  was  much  to  be 
done.  What  reason  is  there  in  saying  that  because 
the  former  can  truthfully  allege  arid  prove  per 
formance,  the  latter  can  do  the  same? 

But,  even  granting,  for  the  sake  of  argument,, 
that  there  is  some  such  distinction  to  be  drawn,  as 
that  attempted  by  the  Court  between  the  situation 
of  the  servant  who  is  wrongfully  prevented  from 
performing  and  that  of  one  who  is  wrongfully  dis 
charged,  and  that  a  person  who  has  been  pre 
vented  from  performing  may  show  that  fact  as 


38 

proof  ot  performance,  yet  the  question  still  re 
mains,  how,  under  the  evidence,  Stone  can  pos 
sibly  be  held  to  have  shown  performance  by  him 
of  that  part  of  the  agreement  by  which  he  cove 
nanted  "  not  to  enter  into  or  engage  in,  directly 
"  or  indirectly,  any  other  mercantile  or  manufac- 
"  turing  business,  or  to  any  other  business  or  occupa- 
"  tion  which  shall  in  anywise  absorb  his  mind  or 
"  strength  or  interfere  with  his  interest  or  efforts 
"  on  behalf  of  the  said  History  Company,  during 
"  the  said  term  of  ten  years."  The  Court  says 
that  "  that  matter  was  fairly  submitted  to  the  jury 
"  upon  the  evidence  and  the  law,  and  a  finding 
"  made  against  appellant's  contention."  How  can 
this  be  said  to  be  the  case  when  the  Court  refused 
to  instruct  the  jury  that  it  would  be  a  breach  of 
the  contract  on  Stone's  part  to  enter  into  or  en 
gage  in,  directly  or  indirectly,  any  other  mercan 
tile  or  manufacturing  business,  though  that  is  the 
plain  meaning  of  the  contract;  and  instructed  the 
jury  instead  that  it  would  be  a  breach  for  Stone 
to  enter  into  or  engage  in  any  other  mercantile  or 
manufacturing  business,  which  did  in  am/wise  ab 
sorb  his  mind  and  strength,  thus  introducing  a  new 
element  which  was  not  contemplated  in  the  agree 
ment. 

3.  The  case  ivas  not  tried  on  any  consistent 
theory,  and  the  defendant  was  prejudiced  by  numer 
ous  errors  of  law  made  by  the  Court  in  its  admission 


39 

or  rejection  of  evidence,  and  in  its  granting  or  refusal 
to  grant  instructions. 

Difficult  as  it  is  to  reconcile  Stone's  two  views 
of  the  relation  in  which  he  stood  to  Bancroft  and 
the  History  Company  under  the  contract,  or  to 
find  anything  like  a  consistent  support  in  his  own 
evidence  of  the  view  which  has  been  adopted  in 
the  opinion  of  the  Court,  it  is  still  more  difficult  to 
find  any  theory  under  which  may  he  brought  the 
,  various  views  taken  by  the  plaintiff  himself  and 
the  trial  Court,  of  the  nature  of  his  right  of  action 
or  of  the  suit  which  he  himself  was  bringing.  The 
theory  adopted  by  the  Department  in  its  opinion 
certainly  does  not  reconcile  the  inconsistencies. 
The  Department  says  that  the  action  is  "  not  one 
"  for  damages  based  upon  the  breach  of  a  contract 
"  of  hiring,  but  is  an  action  based  upon  the  con- 
"  tract  itself,  upon  an  express  promise  to  pay,  and 
"  in  this  regard  the  complaint  was  advisedly 
"  framed,"  and  yet  it  approves  the  following  in 
struction  given  to  the  jury  by  the  Court  below: 
"  For  the  breach  of  an  obligation  arising  from  con- 
<k  tract,  the  measure  of  damages  is  the  amount 
"  which  will  compensate  the  party  aggrieved,"  etc. 
Moreover,  it  approves,  also,  the  instruction  in 
which  the  Court  told  the  jury  that  if  the  defend 
ant  prevented  the  plaintiff  from  discharging  the 
duties  required  of  him,  he  was  entitled  to  the  sal 
ary  mentioned  in  the  agreement  "the  same  as  if 


40 

"  all  the  duties  required  by  said  contract  had  been 
"  performed."  How  a  jury  could  be  expected  to 
straighten  out  such  inconsistent  instructions  as 
these  and  bring  in  any  rational  verdict  must  be 
left  to  conjecture. 

The  Department  says  with  regard  to  the  excep 
tions  taken  to  the  rulings  of  the  Court  in  the  admiss 
ion  and  rejection  of  evidence  that  "upon  anexami- 
"  nation  of  them  we  find  a  majority  not  well  taken 
"  and  others,  even  if  meritorious  in  the  abstract, 
"  still  are  of  minor  importance  and  not  prejudicial." 
It  is  submitted  that  the  Court  has  failed  to  give 
these  exceptions  their  proper  weight.  Where  the 
real  issues  presented  by  the  pleadings  were  so  clear, 
and  the  verdict  that  the  jury  should  have  brought 
in  on  the  evidence  that  was  clearly  relevant  to  those 
issues  is  so  manifest,  it  is  difficult  to  reach  any 
other  conclusion  than  that  the  jury  was  confused 
and  prejudiced  by  the  mass  of  irrelevant  testi 
mony  admitted  and  the  unjustifiable  and  incon 
sistent  instructions  given  by  the  Court  on  the  con 
flicting  theories  on  which  the  case  was  tried. 

These  matters  were  considered  in  the  points  arid 
authorities  of  appellant  on  file  herein,  which  we 
ask  the  Court  to  consider  with  this  petition. 

It  only  remains  for  us  to  say  that  we  have  crit 
icized  the  judgment  of  the  Department  wher 
ever  we  have  found  it  subject  in  our  judgment  to 


41 

criticism,  but  we  trust  that  we  shall  be  found 
guilty  of  no  remarks  which  shall  seem  unfair  or 
unnecessary  or  wanting  in  due  respect  or  which 
should  not  be  found  in  a  communication  between 
Court  and  counsel. 

Respectfully  submitted, 

EDWARD  J.  McCUTCHEN, 

Attorney  for  Petitioner. 

PAGE,  McCUTCHEN  &  EELLS, 
Of  Counsel. 


CHICAGO,  ST.    P.,   M.  &    O.    RY.   CO.    V.    BELLIWITH.  443 

erbal  act,  which  was  a  part  of  the  res  gesta3.  The  statement  of 
>le  was  not  made  at  or  near  the  time  when  the  act  to  which  it  re- 
j  was  done.  It  was  not  made  until  about  six  months  after  the 
nt  which  it  describes  had  happened,  and  it  was  a  mere  narration  of 
5  past  event,  founded,  not  on  what  Poole  saw  or  heard  at  the  time,  j 

on  whaf  some  one  else  had  told  him  that  he  saw  or  heard.  This 
dement  was  entirely  detached  from  any  material  act  that  is  perti- 
t  to  the  issue  in  this  case,  and  was  itself  nothing  but  hearsay. 
urance  Co.  v.  Mosley,  8  Wall.  307,  405,  416;  Vicksburg  &  M.  R. 
v.  O'Brien,  119  U.  S.  99,  104,  105,  7  Sup.  Ct.  118;  Association  v. 
Tock,  36  U.  S.  App.  658,  667,  20  C.  C.  A.  3,  8,  and  73  Fed.  774,  778. 
1  testimony  of  Kort  was  therefore  hearsay  repeating  hearsay,  and 
hould  have  been  rejected. 

t  is  assigned  as  error  that  the  court  refused  to  give  to  the  jury 
following  instruction: 

f  you  find  that  the  plaintiff,  after  going  round  to  the  east  gap,  where  he 
erstood  he  was  to  wait  for  the  incoming  train,  from  motives  of  curiosity,  or 
his  own  pleasure,  went  much  nearer  the  burning  tank,  and  was  injured  by 
ion  of  so  doing,  he  cannot  recover;  and  you  are  to  consider,  in  that  connec- 
,  whether  the  reason  which  he  now  gives  for  going  back  is  truthful,  or 
ther  it  is  a  mere  subterfuge  to  excuse  his  conduct." 

Vith  the  exception  of  that  part  which  relates  to  the  reason  which 
liwith  gave  for  going  back,  this  is  substantially  the  same  instruc- 
i  which  we  held  in  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Myers,  25  C. 
&.  486,  80  Fed.  361, — a  case  arising  out  of  the  same  accident, — 
uld  have  been  given.  Our  reasons  for  this  view,  and  some  of  the 
horities  which  support  it,  will  be  found  in  Judge  Thayer's  opinion 
:hat  case,  and  will  not  be  repeated  here.  Belliwith  testified  that 
went  back  towards  the  burning  tank  to  get  a  package  that  he  hud 
in  the  passenger  car  which  he  had  occupied  on  his  way  from  Min- 
polis.  Several  witnesses,  howrever,  testified  that  he  had  told  them 
various  times  that  he  went  back  to  find  his  handkerchief,  which 
discovered  he  had  lost  from  his  pocket.  In  view  of  the  testimony 
:hese  witnesses,  and  the  general  character  of  the  evidence  given 
Belliwith,  we  think  the  latter  part  of  this  request  was  not  objec- 
lable,  and  are  of  the  opinion  that  the  entire  request  should  have 
n  given,  if  the  case  was  to  be  submitted  to  the  jury,  at  all. 
'here  are  other  assignments  of  error  in  this  record,  but  the  ques- 
is  which  they  present  are  not  likely  to  arise  again  in  the  case,  arid 
good  purpose  wroUld  be  served  by  discussing  them.  The  judgment 
DW  must  be  reversed,  with  costs,  and  the  case  must  be  remanded 
the  court  below,  with  directions  to  grant  a  new  trial;  and  it  is  so 
ered. 


444  83   FEDERAL    REPORTER. 


HAM  ELY  v.  BANCROFT. 

(Circuit  Court,  N.  D.  California.     November  15,  1897.) 
No.  12,383. 

1.  ACTION  FOR  SALARY — PARTNERSHIP. 

S.  made  an  agreement  with  defendant  by  which,  in  consideration  of  past 
services  rendered  by  S.  to  a  certain  business  about  to  be  incorporated  as 
the  H.  Co.,  defendant  sold  to  him  a  one-tenth  interest  in  that  company  and  in 
its  assets;  and  S.  agreed,  for  at  least  10  years  to  come,  to  devote  his  entire 
attention  to  the  business  of  the  company.  Upon  the  incorporation  of  the 
company,  S.  was  to  receive  one-tenth  of  the  stock,  subject  to  forfeiture 
for  his  breach,  and  subject  to  defeasance,  as  to  one-half,  in  case  of  his  death 
within  five  years.  The  agreement  added,  "The  salary  of  the  said  S.  shall 
be  $350  a  month."  Held,  that  the  contract  was  one  of  employment,  and 
not  of  partnership,  and  that  defendant  was  personally  liable  for  S.'s  salary. 

2.  JUDICIARY  ACT— STATE  LAW  AS  RULE  OF  DECISION. 

Section  34  of  the  judiciary  act  of  1789  (1  Stat.  92;  Rev.  St.  §  721),  pro 
viding  that  "the  laws  of  the  several  states  *  *  *  shall  be  regarded  as 
rules  of  decision  *  *  *  in  the  courts  of  the  United  States  *  *  *,"  does 
not  apply  to  a  decision  of  a  state  court  determining  the  construction  of  a 
contract. 

This  was  an  action  at  law  by  H.  B.  Hambly  against  H.  H.  Ban 
croft  to  recover  the  sum  of  $9,833.33,  alleged  to  be  due  as  salary 
owing  under  a  contract  of  employment.  Demurrer  that  the  com 
plaint  does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

Reddy,  Campbell  &  Metson,  for  plaintiff. 
Page,  McCutchen  &  Eells,  for  defendant. 

MORROW,  Circuit  Judge.  The  present  suit  was  removed  to  this 
court  on  June  21,  1897,  from  the  superior  court  of  this  state  in  and 
for  the  city  and  county  of  San  Francisco.  The  plaintiff  is  a  citi 
zen  of  this  state;  and  the  defendant,  a  citizen  of  the  state  of  Mas 
sachusetts.  The  action  is  brought  by  the  plaintiff,  H.  B.  Hambly, 
as  the  assignee  of  N.  J.  Stone,  to  recover  the  sum  of  $9,833.33,  al 
leged  to  be  due  by  the  defendant,  H.  H.  Bancroft,  as  salary  owing 
to  Stone  under  a  contract  of  employment.  The  case  now  comes  up 
on  a  demurrer  to  the  complaint,  it  being  claimed  that  the  facts 
stated  in  the  complaint  are  not  sufficient  to  constitute  a  cause  of 
action.  The  complaint  sets  out,  substantially,  that  on  the  20th  day 
of  August,  1886,  N.  J.  Stone  and  the  defendant,  H.  H.  Bancroft, 
made  and  entered  into  the  following  agreement: 

"That  in  consideration  of  the  valuable  services  done  by  the  said  Stone  in  con 
ducting  the  publication  and  sale  of  tlie  historical  works  of  the  said  Bancroft, — 
the  business  formerly  being  conducted  as  the  Bancroft's  Works  Department  of 
A.  L.  Bancroft  &  Co.,  but  now  being  done  and  shortly  to  be  incorporated  under 
the  laws  of  the  state  of  California  as  the  History  Company, — the  said  Bancroft 
hereby  sells  and  assigns  to  the  said  Stone  a  one-tenth  interest  in  the  said  His 
tory  Company,  plates,  paper,  stock,  money  outstanding,  accounts,  or  other  prop 
erty  of  said  company,  upon  the  following  conditions:  The  said  N.  J.  Stone  is 
to  devote  his  whole  time  and  best  energies,  so  far  as  his  health  and  strength 
shall  permit,  for  a  period  of  not  less  than  ten  years  from  the  date  of  this  agree 
ment,  to  the  publication  and  sale  of  the  historical  works  of  H.  H.  Bancroft, 
and  of  such  other  works,  and  conduct  such  other  business,  as  may  be  from  time 
to  time  taken  up  and  entered  into  by  said  History  Company;  and  the  said 


HAMBLY    V.    BANCROFT.  445 

ne  agrees  not  to  enter  into  or  engage  in,  directly  or  indirectly,  any  other 
rcantile  or  manufacturing  business,  or  in  any  other  business  or  occupation 
ich  shall  in  any  wise  absorb  his  mind  and  strength,  or  interfere  with  his  in- 
sst  or  efforts  on  behalf  of  the  said  History  Company,  during  the  said  term 
ten  years.  Upon  the  incorporation  of  the  History  Company,  one-tenth  of 
whole  number  "of  shares  shall  be  issued  and  delivered  to  the  said  N.  J. 
ne;  but  should  the  said  Stone  fail  in  any  wise  to  carry  out  this  agreement, 
my  part  thereof,  in  its  full  letter  and  spirit,  then  the  said  one-tenth  interest 
lie  said  History  Company  shall  be  forfeited,  and  revert  to  the  said  H.  H. 
icroft:  provided,  and  it  is  distinctly  understood  and  agreed,  that,  in  case 
lie  death  of  the  said  N.  J.  Stone  before  the  expiration  of  five  years  from  the 
e  of  this  agreement,  the  said  Stone  having  fulfilled  all  the  conditions  of  this 
cement  up  to  that  time,  then  one-half  of  the  said  one-tenth  interest  of  the 

I  Stone  in  the  History  Company  shall  go  to  his  heirs,  and  be  their  property, 
onditionally;    and  in  the  event  of  the  death  of  the  said  Stone  at  any  time 
;r  the  expiration  of  five  years  from  the  date  of  this  agreement^  the  terms 
»of  having  been  fully  complied  with,  then  the  whole  of  the  said  one-tenth 
•rest  shall  belong  to  his  heirs,  unconditionally.    The  salary  of  the  said  Stone 

II  be  $350  a  month.    The  copyright  of  the  said  historical  works  belongs  ex- 
lively  to  the  saifl  Bancroft,  and  shall  be  fifty  cents  a  volume  for  the  History 

Diaz,  and  twenty  cents  on  the  little  History  of  Mexico. 
•Signed  in  San  Francisco  the  twentieth  day  of  August,  1886. 

"H.   H.    Bancroft. 

"N.  J.  Stone. 
Witness:    W.  N.  Hartwell." 

't  is  further  averred  that  N.  J.  Stone  duly  performed  all  the  con- 
ions  of  said  contract  on  his  part  to  be  kept  and  performed,  and 
it  he  is  now,  and  always  has  been,  ready  and  willing  to  perform 
the  terms  and  conditions  of  said  contract  on  his  part  to  be  kept 
1  pin-formed,  but  that  said  defendant  has  failed  and  neglected  to 
•form  the  terms  and  conditions  of  said  contract  upon  his  part  to 
kept  and  performed,  and  has  failed  and  neglected  and  refused  to 
7  or  cause  to  be  paid  to  the  said  Stone  the  salary  mentioned  in 
d  contract,  and  still  refuses  to  pay  said  salary,  although  often 
uested  so  to  do;  that  no  part  of  said  salary  has  been  paid  to 
d  Stone  from  the  1st  day  of  April,  1894,  to  the  20th  day  of  Au 
*t,  1896;  that  prior  to  the  commencement  of  this  action,  to  wit, 
the  13th  day  of  June,  1896,  said  Stone  sold,  assigned,  and  trans- 
red  to  the  plaintiff  herein  all  of  his  right,  title,  and  interest  m 
(r  moneys  then  due  or  thereafter  to  become  due  under  the  said 
itract  with  the  said  defendant  as  hereinbefore  set  forth;  that 
thing  has  been  paid  by  defendant  to  plaintiff  on  account  there- 
It  is  contended  upon  this  demurrer  by  counsel  for  the  defend- 
t  that  the  parties,  by  the  terms  of  the  contract  set  out  in  the 
nplaint,  created  a  partnership,  and  not  a  contract  of  employ  - 
nt,  and  that,  therefore,  the  present  suit,  being  predicated  upon 
contract  of  employment,  cannot  be  maintained.  On  the  other 
ad,  it  is  contended  by  counsel  for  the  plaintiff  that  the  contract 
>d  upon  is  one  of  employment,  and  that  the  supreme  court  of  this 
te,  in  a  case  involving  the  same  contract,  and  between  the  par- 
3  to  it,  so  decided,  and  that  this  decision  is  binding  on  this  court, 
e  interpretation  of  the  contract  sued  on  in  this  case  was  in- 
ived  in  the  suit  of  Stone  v.  Bancroft,  brought  in  the  state  court, 
me  sued  Bancroft  in  the  state  court  for  his  salary  at  the  con- 
.ct  rate  of  $350  per  mouth  for  the  period  of  14  months.  He  re- 


446  83    FEDERAL    REPORTER. 

covered  judgment,  and  the  case  was  appealed  to  the  supreme  court, 
where  the  judgment  was  affirmed.  112  Cal.  652,  44  Pac.  1069.  The 
supreme  court  held  that  the  contract  was  one  of  employment,  and 
not  of  partnership,  and  that  the  action  to  recover  his  salary  was 
a  proper  one,  instead  of  a  suit  for  damages  for  breach  of  contract, 
in  view  of  the  fact  that  the  evidence  introduced  in  that  case  showed 
that  Stone  had  never  been  discharged  bv  Bancroft  from  his  employ 
ment  under  the  contract.  That  suit  was  brought  by  Stone  to  re 
cover  his  salary  for  the  period  extending  from  January  1,  1892,  to 
May  1,  1893.  The  present  suit  is  brought  to  recover  his  salary  from 
April  1,  1894,  to  August  20,  1896. 

The  first  question  which  arises  is  whether  the  interpretation 
placed  by  the  supreme  court  of  this  state  on  the  contract  sued  upon 
is  binding  on  this  court,  under  the  thirty-fourth  section  of  the  ju 
diciary  act  of  1789  (1  Stat.  92;  section  721,  Rev.  St.).  That  section 
provides  that: 

"The  laws  of  the  several  states,  except  where  the  constitution,  treaties,  or 
statutes  of  rlie  United  States  otherwise  require  or  provide,  shall  be  regarded 
as  rules  of  decision  in  trials  at  common  law,  in  the  courts  of  the  United  States, 
in  cases  where  they  apply." 

The  expression  "laws  of  the  several  states"  includes  the  deci 
sions  of  the  state  courts  construing  the  laws.  Swift  v.  Tyson,  16 
Pet.  1.  The  general  rule  as  to  when  decisions  of  the  state  courts, 
under  the  above-quoted  section,  are  binding  on  the  federal  courts, 
and  when  they  are  not,  is  well  stated  in  the  case  just  cited,  in  the 
following  language: 

"In  all  the  various  cases  which  have  hitherto  come  before  us  for  decision, 
this  court  have  uniformly  supposed  that  the  true  interpretation  of  the  thirty  - 
fonrlh  section  limited  its  application  to  state  laws,  strictly  local:  that  is  to  say. 
to  the  positive  statutes  of  the  state,  and  the  construction  thereof  adopted  by  the 
local  tribunals,  and  to  rights  and  titles  to  tilings  having  a  permanent  locality, 
such  as  the  rights  and  titles  to  real  estate,  and  other  matters  immovable  and 
intraterritorial  in  their  nature  and  character.  It  has  never  been  supposed  by  us 
that  flie  section  did  apply,  or  was  designed  to  apply,  to  questions  of  a  more  gen 
eral  nature,  not  at  all  dependent  upon  local  statutes  or  local  usages  of  a  fixed 
and  permanent  operation,  as,  for  example,  to  the  construction  of  ordinary  con 
tracts  or  other  written  instruments,  and  especially  to  questions  of  general  com 
mercial  law,  where  the  state  tribunals  are  called  upon  to  perform  the  like 
functions  as  ourselves;  that  is,  to  ascertain,  upon  general  reasoning  and  legal 
analogies,  what  is  the  true  exposition  of  the  contract  or  instrument,  or  what 
is  the  just  rule  furnished  by  the  principles  of  commercial  law  to  govern  the 
case.  And  we  have  not  now  the  slightest  difficulty  in  holding,  that  this  section. 
upon  its  true  intendment  and  construction,  is  strictly  limited  to  local  statutes 
and  local  usages  of  the  character  before  stated,  and  does  not  extend  to  con 
tracts  and  other  instruments  of  a  commercial  nature,  the  true  interpretation 
and  effect  whereof  are  to  be  sought,  not  in  the  decisions  of  the  local  tribunals. 
but  in  the  general  principles  and  doctrines  of  commercial  jurisprudence.  Un 
doubtedly,  the  decisions  of  the  local  tribunals  upon  such  subjects  are  entitled 
to,  and  will  receive,  the  most  deliberate  attention  and  respect  of  this  court: 
but  they  cannot  furnish  positive  rules  or  conclusive  authority  by  which  our  own 
judgments  are  to  be  bound  up  and  governed." 

It  is  true  that  in  the  case  cited  the  supreme  court  were  consid 
ering  and  interpreting  a  negotiable  instrument  in  the  light  of  the 
principles  of  commercial  law,  but  their  language  is  equally  appli 
cable  to  the  interpretation  of  ordinary  contracts.  Subsequent  de- 


HAMBLY    V.   BANCROFT.  447 

cisions  only  tend  to  reaffirm  this  rule,  and  in  Lane  v.  Vick,  3  How. 
404.  it  was  said: 

"With  the  greatest  resperi,  it  may  lie  proper  to  say  that  this  court  do  not 
follow  the  state  courts  in  their  construction  of  a  will  or  any  other  instrument, 
as  they  do  in  the  construction  of  statutes." 

See,  also,  Carpenter  v.  Insurance  Co.,  16  Pet  495;  Butz  v.  City 
of  Muscatiue,  8  Wall.  575;  Gates  v.  Bank,  100  U.  S.  2:51);  Watson  v. 
Tarpley,  18  How.  517;  Amis  v.  Smith,  16  Pet.  303,  314;  Railroad 
Co.  v.  National  Bank,  102  U.  S.  14,  54;  Liverpool  &  G.  W.  Steam 
Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397,  443,  9  Sup.  Ct.  469. 

The  only  question  involved  in  the  case  at  bar,  as  in  the  suit  of  Stone 
v.  Bancroft  in  the  state  court,  is  one  of  the  interpretation  of  the  con 
tract  sued  upon.  No  rule  of  property  can  be  said  to  be  involved,  nor 
does  the  decision  in  the  case  depend  upon  the  construction  given 
by  the  state  court,  in  the  case  referred  to,  to  the  laws  of  this  state. 
The  question  is  confined  to  the  single  inquiry  as  to  the  interpre 
tation  to  be  given  the  contract  sued  on;  that  is,  whether  it  is  one 
of  hiring  or  one  of  partnership.  This  obviously  calls  for  the  inde 
pendent  judgment  of  the  court.  Reverting,  therefore,  to  the  ground 
of  demurrer,  that  the  complaint  does  not  state  facts  sufficient  to 
constitute  the  cause  of  action  sought  to  be  made,  it  is  plain  that 
the  disposition  of  this  question  depends  upon  the  interpretation  to 
be  given  to  the  contract  set  out  in  the  complaint.  Looking  at  the 
instrument  without  the  aid  of  any  extraneous  evidence,  it  is 
difficult  to  escape  the  conclusion  that  it  was  drawn  up  as,  and  ex 
presses,  a  contract  of  employment,  and  not  of  partnership.  Stone 
agreed  with  Bancroft  that  he  would  render  certain  services  in  con 
nection  with  the  publication  and  sale  of  the  historical  works  of  Ban 
croft,  and  of  such  other  work,  and  conduct  such  other  business,  as 
might  be,  from  time  to  time,  taken  up  and  entered  into  by  the  His 
tory  Company,  for  which  services  he  wras  to  receive  a. monthly  sal 
ary  of  $350.  He  was  engaged  by  Bancroft,  and  the  latter  agreed 
to  pay  him.  Stone,  in  return,  agreed  "to  devote  his  whole  time  and 
best  energies,  so  far  as  his  health  and  strength  shall  permit,  for  a 
period  of  not  less  than  ten  years  from  the  date  of  the  agreement," 
to  the  purposes  and  objects  above  specified.  The  period  of  serv 
ice  was  distinctly  stated  and  agreed  upon  to  be  not  less  than  10 
years,  and  Bancroft,  fully  cognizant  of  this  stipulation,  neverthe 
less  agreed  to  pay  Stone  during  that  period,  for  the  services  ren 
dered  under  the  contract^  the  sum  of  $350  a  month.  This  Bancroft 
agreed  to  do,  although  it  is  recited  in  the  agreement  for  the  em 
ployment  of  Stone's  services  that  the  History  Company,  so-called, 
was  shortly  to  be  incorporated.  Therefore,  from  the  terms  of  the 
contract  itself,  Bancroft  deliberately  engaged  and  contracted  that 
Stone  should  render  services  to  himself  and  to  the  History  Company, 
when  it  should  be  incorporated,  for  a  certain  period,  specified  at  not 
less  than  10  years,  and  for  a  stipulated  salary.  The  fact  that,  upon 
the  incorporation  of  the  company,  Stone  was  to  render  his  services. 
under  the  contract  with  Bancroft,  to  the  company,  does  not,  in  law, 
relieve  Bancroft  from  Ms  solemn  engagement  to  pay  Stone  for  the 
services  called  for  by  the  contract,  and  which  the  latter  was  ready 


448  83    FEDERAL    RKPORTER. 

and  willing  to  render.  It  is  immaterial  whether  the  services  were 
rendered  to  Bancroft  personally,  or  to  the  History  Company.  It  is 
enough  that  Stone  was  engaged  by  Bancroft  to  do  certain  work, 
and  that  he  entered  upon  the  discharge  of  his  duties  at  the  solicita 
tion  of  Bancroft,  and  upon  his  written  promise  to  pay  for  such 
services.  The  company  might  receive,  under  the  terms  of  the  con 
tract  between  Stone  and  Bancroft,  the  benefit  of  Stone's  services, 
and  yet,  in  law,  Bancroft,  by  virtue  of  his  written  promise,  be  liable 
for  the  payment  of  the  salary.  That  one  may  engage  the  services 
of  another  to  be  rendered  to  a  third  party  is  elementary  law.  1 
Add.  Cont.  (3d  Am.  Ed.)  §  38;  Craig  v.  Fry,  68  Cal.  363,  9  Pac.  550; 
Civ.  Code  Cal.  §  1965.  One  can  search  the  contract  in  vain  for  a 
statement  or  admission  that  Stone  was  hired  or  to  be  employed  by 
the  History  Company  upon  its  incorporation,  and  was  to  be  paid 
by  the  company  for  the  services  he  rendered  under  his  contract 
with  Bancroft.  On  the  contrary,  a  careful  reading  of  the  agree 
ment  leads  to  the  conclusion  that  Stone  was  to  be  paid  by  Bancroft, 
with  whom  he  entered  into  the  contract. 

It  is  claimed,  however,  that  the  contract  was  one  of  partnership, 
and  that,  by  the  terms  of  the  contract,  Stone  was  to  get  a  one- 
tenth  interest  in  the  History  Company,  and  that,  therefore,  the 
salary  to  Stone  was  intended  to  be  paid  by  the  partnership,  and 
not  by  Bancroft  personally.  But  the  difficulty  about  this  conten 
tion  is  that  Stone  was  not  given  the  one-tenth  interest  in  consid 
eration  of  the  services  called  for  under  the  contract.  This  one- 
tenth  interest  was  for  past  services,  which  had  nothing  to  do  with 
those  to  be  performed  under  the  contract  sued  upon.  It  was : 

"In  consideration  of  the  valuable. services  done  by  ttoe  said  Stone  in  conduct 
ing  the  publication  and  sale  of  the  historical  works  of  the  said  Bancroft,  the 
business  formerly  being  conducted  as  the  Bancroft  Works  Department  of  A. 
L.  Bancroft  &  Co.,  but  now  being  done  and  shortly  to  be  incorporated  under 
the  laws  of  California  as  the  History  Company." 

This  transfer  of  a  one-tenth  interest  was,  however,  qualified  by 
a  stipulation  in  the  agreement  that: 

"Should  the  said  Stone  fail  in  any  wise  to  carry  out  this  agreement,  or  any 
part  thereof,  in  its  full  letter  and  spirit,  then  the  said  one-tenth  interest  in  the 
said  History  Company  shall  be  forfeited,  and  revert  to  the  said  H.  H.  Bancroft." 

There  was  a  further  stipulation  in  the  agreement  that,  should 
Stone  die  before  the  expiration  of  five  years  from  the  date  of  the 
agreement,  his  heirs  would  only  get  one-half  of  the  one-tenth  in 
terest  referred  to.  Outside  of  this  transfer  of  a  one-tenth  inter 
est  for  past  services,  there  is  nothing  in  the  language  or  terms  of 
the  contract  sued  upon  which  would  justify  the  interpretation  that 
it  was  ever  intended  to  be,  and  is,  in  legal  effect,  a  contract  of  part 
nership.  The  word  "partners"  is  not  once  used,  nor,  in  fact,  does  the 
instrument  contain  any  expressions  from  which  it  could  be  reason 
ably  and  fairly  deduced  that  the  parties  considered  that  they  were 
entering  into  partnership  relations.  Indeed,  the  recital  in  the  in 
strument  that  the  History  Company,  so-called,  was  shortly  to  be  in 
corporated,  would  seem  to  be  inconsistent  with  the  idea  that  Stone 
and  Bancroft  considered  that  they  were  entering  into  a  partner- 


STUFFLEBEAM    V.   DE    J.ASHMUTT.  44H 

ship.  The  supreme  court  of  this  state,  in  the  case  before  referred 
to,  involving  this  agreement,  took  the  view,  as  stated,  that  the  con 
tract  was  one  of  employment,  and  not  of  partnership.  While  it  is 
true  that  this  decision,  under  the  authorities  heretofore  cited,  is 
not  binding  on  this  court,  involving,  as  it  does,  merely  the  inter 
pretation  of  an  instrument,  still  it  is  entitled  to  great  respect. 
Swift  v.  Tyson,  supra.  The  interpretation  of  the  contract  in  ques 
tion  arose,  as  in  the  case  at  bar,  upon  a  general  demurrer  to  the 
complaint.  The  supreme  court,  in  affirming  the  decision  of  the 
trial  court  overruling  the  demurrer,  used  the  following  language: 

"We  think  the  only  fair  interpretation  to  be  given  this  contract  is  that  IVi'i 
croft  was  to  pay  Stone  three  hundred  and  fifty  dollars  per  month  for  his 
services.  There  is  but  a  single  theory  that  can  be  advanced  looking  to  a  <-»n 
trary  construction,  and  that  is  to  the  effect,  that  this  contract  between  Bancroft 
and  Stone  constituted  them  partners  (Stone  possessing  a  one-tenth  interest  in 
the  partnership),  and  that  consequently  .the  salary  of  said  Stone  was  to  be  paid 
by  the  partnership.  Upon  a  mere  cursory  examination  of  the  contract,  it  i.« 
plainly  evident  that  it  does  not,  and  was  never  intended  to,  create  a  partnership 
between  these  two  parties.  This  is  patent  from  the  fact  that  it  was  contem 
plated  in  the  writing  itself  that  in  the  near  future  the  History  Company  was 
to  be  incorporated.  It  is  doubly  apparent  when  we  consider  that  the  one-tenth 
interest  in  the  property  given  by  Bancroft  to  Stone  failed  to  vest  any  absolute 
title  in  him,  but  was  dependent  upon  conditions,  and  liable  to  be  forfeited  and 
revert  to  Bancroft  at  any  moment.  That  Stone  had  no  such  interest  in  this 
business  as  to  constitute  him  a  partner  is  further  made  plain  when  we  look  at 
the  provision  of  the  contract  wherein  it  is  expressly  stipulated  that,  if  Stone 
should  die  within  five  years  from  its  date,  then  only  one-half  of  the  one-tenth 
interest  should  pass  to  his  heirs.  To  hold  these  parties  partners  under  the 
agreement  would  make  Stone's  salary  dependent  upon  the  profits  of  the  busi 
ness.  There  is  nothing  contained  herein  to  indicate  any  such  intention,  and  it 
is  certainly  not  so  provided.  We  conclude  that  the  contract  should  be  construed 
as  a  contract  of  hiring  of  Stone  by  Bancroft,  at  an  agreed  price  of  three  hundred 
and  fifty  dollars  per  month."  Stone  v.  Bancroft,  112  Cal.  GT>2,  «>.".,  44  Pac.  1009. 

The  view  taken,  and  thus  expressed,  by  the  supreme  court  of  this 
state,  accords  with  the  view  I  take  of  the  legal  effect  of  the  contract 
in  question.  In  my  opinion,  the  plaintiff's  cause  of  action  is  legally 
and  properly  based  upon  the  contract  as  one  of  employment;  and 
the  complaint,  in  my  judgment,  states  facts  sufficient  to  consti 
tute  a  cause  of  action.  The  demurrer  will  be  overruled,  with  leave 
to  the  defendant  to  answer  within  10  days,  if  he  shall  be  so  advised. 


STUFFLEBEAM  v.  DE   LASHMUTT. 

(Circuit  Court,  D.  Oregon.     November  18,  1807.) 

No.  2,409. 

1.  NATIONAL    BANKS  — LIABILITY    OF    STOCKHOLDER—  -  PURCHASE    INDUCED    BY 

FRAUD. 

One  who  is  induced  by  fraud  to  purchase  stock  of  an  insolvent  national 
bank,  and  have  it  transferred  to  him  on  the  books  of  the  bank,  and  who, 
upon  discovery  of  the  fraud,  takes  prompt  action  to  rescind  the  contract, 
is  not  liable  to  assessment  on  such  stock,  except  on  behalf  of  persons  who  ex 
tended  credit  to  the  bank,  after  the  transfer,  without  knowledge  of  the  fraud. 

2.  APPARENT  STOCKHOLDER— GROUND  OF   LIABILITY— ESTOPPEL. 

The  binding  character  of  the  obligation  of  one  whose  name  appears  as  a 
stockholder  on  the  books  of  a  corporation  is  on  the  principle  of  estoppel, 
83  F.— 29 


450  83    FEDERAL    REPORTER. 

which  precludes  him  from  denying  a  relation  he  has  assumed,  and  upon  the 
strength  of  which  others  have  acted. 

W.  H.  Effinger,  for  plaintiff. 
E.  B.  Williams,  for  defendant. 

BELLINGER,  District  Judge.  This  is  a  demurrer  to  the  separate 
answer  of  De  Lashmutt  to  the  complaint  in  an  action  brought  to 
recover  an  assessment  upon  national  bank  stock  held  by  defendant, 
on  the  ground  that  the  facts  alleged  do  not  constitute  a  defense  to 
the  cause  of  action  set  out  in  the  complaint.  The  separate  answer 
alleges,  in  effect :  That  defendant  was  induced  by  false  representa 
tions,  fraudulently 'made,  as  to  the  condition  of  the  National  Bank  of 
Moscow,  by  Brown,  the  president  of  the  bank,  and  Brune,  its  cashier, 
to  convey  land  of  the  value  of  $15,000  to  Brown  in  consideration  of 
the  transfer  to  defendant  of  stock  in  the  bank  of  the  par  value  of 
|12,500.  That  about  20  days  thereafter  said'  bank  was  closed  by 
the  officers  of  the  United  States  government,  and  the  bank  taken  in 
charge  by  them.  That  then,  for  the  first  time,  the  defendant  became 
apprised  of  the  condition  of  the  affairs  of  such  bank,  and  of  the 
fraud  practiced  upon  him.  That  he  then  learned  that  said  bank 
was  insolvent  at  the  time  the  stock  was  assigned  to  defendant.  That 
the  stock  at  that  time  was  valueless,  and  the  holders  thereof  were, 
moreover,  liable  to  be  called  upon  for  assessments  to  pay  creditors. 
That,  as  soon  as  this  condition  of  the  affairs  was  made  known  to 
defendant,  he  rescinded  the  contract  he  had  made  with  Brown,  and 
called  upon  him  to  reconvey  the  land  taken  by  him;  and  defendant 
tendered  the  stock,  duly  assigned,  to  Brown.  That  Brown  refused 
to  accept  such  tender,  or  make  reconveyance,  as  demanded.  That 
immediately  thereupon,  and  prior  to  the  assessment  sued  on,  defend 
ant  brought  a  suit  against  Brown  to  rescind  such  contract,  and  re- 
convey  the  land  so  fraudulently,  as  alleged,  procured  to  be  conveyed 
by  Brown  and  Brune.  The  plaintiff  contends  that  the  liability  of 
defendant  is  absolute;  that  it  follows  the  legal  ownership  of  the  stock 
in  his  hands,  regardless  of  any  right  in  defendant  to  have  the  con 
tract  by  which  he  took  such  title  canceled. 

It  is  held  in  numerous  cases — and  there  is  nothing  to  the  contrary 
— that  a  subscriber  who  is  induced  to  subscribe  for  stock  in  a  corpora 
tion  by  fraudulent  representations  may  set  up  such  fraudulent  rep 
resentations  by  way  of  defense  in  an  action  to  recover  the  purchase 
price  of  the  stock  so  taken.  Bank  v.  Peck,  29  Conn.  384.  And  a  re 
ceiver  has  only  the  right  existing  in  the  corporation  at  the  time  of 
his  appointment.  The  case  mainly  relied  upon  in  support  of  the 
demurrer  is  that  of  Pauly  v.  Trust  Co.,  165  U.  S.  606,  17  Sup.  Ct. 
465.  This  case  holds  that  if  the  owner  of  stock  transfers  his 
shares  to  another  as  collateral  securitv  for  a  debt  due  to  the  latter 
from  such  owner,  and  if,  by  the  direction  or  with  the  knowledge  of 
the  pledgee,  the  shares  are  placed  on  the  books  of  the  association  in 
such  way  as  to  imply  that  the  pledgee  is  the  real  owner,  then  the 
pledgee  may  be  treated  as  a  shareholder,  within  the  meaning  of 
section  5151  of  the  Revised  Statutes  of  the  United  States,  and  there 
fore  liable,  upon  the  basis  prescribed  by  that  section,  for  the  con- 


CALIFORNIA  DECISIONS.  695 

deceased.  The  real  estate  vested  by  operation  of  law,  subject  to  ad 
ministration,  and  the  payment  of  debts,  in  the  appellant  and  respondent 
in  equal  proportions.  This,  therefore,  is  an  action  by  a  grantee  under 
a  voluntary  defective  conveyance  to  obtain  the  aid  of  a  court  of  equity 
to  correct  and  reform  the  conveyance  as  against  an  heir  at  law,  who 
is  unprovided  for  by  deceased.  If  the  deed  had  been  made  to  a  pur 
chaser  for  a  valuable  consideration,  it  would  in  equity  be  sustained 
against  the  heirs  and  reformed  so  as  to  make  it  convey  the  land  in 
tended  to  be  conveyed.  But  the  legal  title  to  the  land  sought  to  be,  by 
a  decree  of  court  of  equity,  read  into  and  made  a  part  of  the  deed, 
is  now  cast  in  appellant  and  respondent,  equally,  as  heirs  at  law  of 
deceased.  It  is  a  universal  principle  of  courts  of  equity  that,  in  all 
cases  where  relief  is  asked  by  aiding  and  correcting  mistakes  in  the 
execution  of  instruments  and  powers,  the  party  seeking  such  relief 
must  stand  upon  some  equity  superior  to  that  of  the  party  against 
whom  he  asks  it.  If  the  equities  are  equal  the  law  must  prevail,  and 
the  court  will  remain  silent  and  passive.  The  equities  of  respondent 
are,  at  least,  equal  to  those  of  appellant.  It  is  the  dictate  of  equity 
and  natural  justice  that  the  property  of  a  wife  dying  without  issue 
should  go  in  part  to  her  surviving  husband.  This  was  certainly  the 
view  of  the  legislature  in  enacting  our  statute  of  distributions,  for 
in  such  case  it  makes  the  husband  the  owner  of  one-half  the  prop 
erty.  If  this  be  so,  then  equity  would  say  to  appellant  that  she  should 
allow  the  respondent  his  one-half  the  property.  A  court  of  equity  in 
terferes  to  correct  a  mistake  in  a  written  instrument  only  in  further 
ance  of  justice,  and  to  prevent  fraud  or  some  injustice.  In  this  ease, 
by  refusing  to  correct  the  deed,  no  fraud  nor  injustice  is  done  to  ap 
pellant.  She  has  lost  nothing,  because  she  paid  no  consideration  for 
the  deed.  She  has  been  deprived  of  nothing  the  law  would  otherwise 
give  her.  It  is  true  the  intention  of  the  grantor  is  not  carried  out,  but 
it  would  have  been  equally  true  if  an  attempt  had  been  made  to  make 
a  will  and  it  had  been  defective  in  a  vital  part.  The  court  could 
not  reform  a  will  nor  make  it  so  that  it  would  comply  with  the  law. 
In  this  case  the  deceased  intended  to  convey  the  property,  but  she  did 
not  do  so.  That  intention  will  not  now  be  carried  out  in  favor  of  one 
who  paid  nothing  for  the  conveyance,  and  against  a  lawful  heir. 

The  above  principles  are  supported  by  an  unbroken  line  of  author 
ities.  It  was  long  ago  said  in  Dawson  v.  Daivson,  1  Dev.  Eq.  101 :  "The 
old  beaten  ground,  long  since  occupied  by  the  courts  of  equity,  not  to 
aid  voluntary  conveyances,  seems  to  render  any  reasons  that  might  be 
urged,  to  show  that  the  bill  should  be  dismissed,  both  trite  and  un 
necessary.  ' ' 

It  is  said  in  Story  on  Equity  Jurisprudence,  Vol.  1,  Sec.  177:  "For 
the  same  reason  equity  will  not  supply  a  surrender  or  aid  the  defective 
execution  of  a  power  to  the  disinheritance  of  the  heir  at  law. ' ' 

The  following  cases  directly  support  what  has  been  said:  Henderson 
et  al.  v.  Dickey  et  al.,  35  Missouri  120 ;  Hout  v.  H out  et  al.,  20  Ohio 
119 ;  Powell  et  al.  y.  Powell,  27  Geo.  38 ;  Powell  v.  Morisey,  98  N.  Car 
olina  426 ;  Shears  v.  Westov er,  110  Mich.  505 ;  Else  v.  Kennedy,  57 


696  CALIFORNIA  DECISIONS. 

Iowa  376 ;    Gwyer  v.  Spauldmg,  33  Neb.  573 ;    Mulock  v.  Mulock,  31  N. 
J.  Eq.  602. 

Counsel  for  appellant,  in  their  reply  brief,  do  not  attempt  to  meet 
the  many  cases  cited  by  reispondent,  but  rely  upon  Section  3399  of  the 
Civil  Code  and  say:  "We  care  not  what  the  construction  or  decision 
of  Eastern  courts  may  be  upon  this  subject,  because  our  Code  has  clearly 
laid  down  the  rule,  and  until  that  rule  is  changed  by  the  legislature  it 
remains  the  rule  in  this  State,  and  fully  and  completely  governs  and 
controls  the  law  of  the  case  at  bar. ' ' 

The  section  referred  to  provides  that  in  case  where  by  reason  of  a  mu 
tual  mistake  "a  written  contract  does  not  truly  express  the  intention 
.of  the  parties,  it  may  be  revised  on  the  application  of  the  party  ag 
grieved.  ' ' 

If  we  concede  that  the  word  "may"  means  must,  it  does  not  follow 
that  an  instrument  must  be  revised,  except  upon  the  application  of  the 
p'arty  aggrieved  and  in  accordance  with  the  rules  of  equity.  The 
party  aggrieved  in  the  sense  of  the  statute  means  one  whose  pecuniary 
interest  is  affected  by  the  mistake.  It  would  include  one  who  paid 
value  for  land,  which,  by  mistake,  was  omitted  from  the  deed.  It  does 
not  include  appellant,  who  is  not  aggrieved,  except  in  the  sense  that 
she  may  grieve  that  she  did  not  get  the  property.  In  that  sense  the 
respondent  might  be  said  to  be  aggrieved  because  the  property  was  not 
conveyed  to  him.  But  the  section  was  never  intended  to  overthrow 
well  settled  principles  upon  which  equity  has  been  administered  under 
the  common  law.  The  seejtion  certainly  does  not  contain  all  the  law 
with  respect  to  the  correction  of  mistakes  in  courts  of  equity.  It  is 
only  where  it  clearly  appears  that  a  long  established  principle  is  in 
tended  to  be  overthrown  that  the  court  will  give  such  effect  to  a  statute. 
Mills,  Estate  of,  v.  Mills  et  al.,  filed  September  15,  1902,  24  Cal.  Dec. 
293. 

It  follows  that  the  judgment  should  be  affirmed. 

COOPER,  C. 

We  concur: 

HAYNES,  C. 
GRAY,  C. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  is 
affirmed. 

VAN  DYKE,  J. 
HARRISON,  J. 
GAROUTTE,  J. 


S.  F.  No.  2398— Department  One.     December  18,  1902. 

N.  J.  STONE,  Plaintiff  and  Respondent,  v.  H.  H.  -BANCROFT,  De 
fendant  and  Appellant. 

CONTRACTS— PERSONAL  SERVICES— PREVENTION  OF  COMPLETION  BY  EMPLOYER— 
EEMEDY— SECTION  1980,  C.  C.— Where  a  contract  for  personal  services  for 
a  definite  term  of  years  at  a  monthly  salary  is  made,  and  there  is  nothing  to  show 
that  the  employer  discharged  the  employee,  although  the  latter  was  prevented  from 
doing  the  work  contracted  for  during  the  period  in  question,  by  the  employer,  the 
remedy  of  the  employee  is  to  sue  for  the  compensation  agreed  upon,  not  for  dam- 


CALIFORNIA  DECISIONS.  697 

ages  for  breach  of  contract.  The  fact  that  the  employee  for  a  portion  of  the- 
time  he  was  prevented  from  working  under  the  contract  engaged  in  other  work 
is  not  a  breach  of  the  contract  on  his  part.  Where  such  a  contract  provides  for 
employment  for  ten  years  at  a  certain  amount  per  month,  the  monthly  salary  is  due 
at  the  end  of  each  month,  and  payment  is  not  postponed  to  the  end  of  the  ten 
year  period.  Section  1980  of  the  Civil  Code  is  no  defense  to  an  action  on  such  a 
contract. 

Appeal  from  the  Superior  Court  of  Contra  Costa  County — John  Hunt, 
Judge.  '  !, 

For  Appellant— Edward  J.  McCutchen;     Page,    McCutchen    &    Eells, 
Page,  McCutchen,  Harding  &  Knight  of  Counsel. 

For  Respondent — Reddy,  Campbell  &  Metson. 

This  action  was  brought  to  recover  a  salary  of  $350  per  month  for 
seven  months  from  September  1,  1893,  to  April  1,  1894,  amounting  in 
the  aggregate  to  $2450.  The  plaintiff  obtained  a  verdict  and  judgment 
for  the  full  amount  claimed.  The  defendant  appeals  from  the  judgment 
and  from  an  order  denying  him  a  new  trial. 

The  action  is  based  on  a  written  agreement  made  between  the  parties 
to  the  suit  on  August  20,  1886,  in  which  plaintiff,  Stone,  agreed  to  de 
vote  ten  years,  beginning  with  that  date,  to  the  publication 
and  sale  of  the  historical  works  of  defendant  Bancroft  at  a  monthly 
salary  of  $350,  and  defendant  agreed  to  employ  him  on  those  terms. 
Suit  was  maintained  for  a  former  period  of  service  under  this  same  con 
tract  and  the  judgment  in  plaintiff's  favor  affirmed  in  Stone  v.  Ban 
croft,  112  Cal.  652.  Reference  is  here  had  to  that  case  for  a  fuller  state 
ment  of  the  contract  here  in  suit.  It  is  settled  by  that  case  that  the 
contract  is  one  for  personal  services  and  not  a  partnership  agreement. 

1.  It  is  contended  by  appellant  that  in  this  suit  the  plaintiff  has  mis 
taken  his  remedy,  that  the  defendant  discharged  plaintiff  from  his  ser 
vice  and  that,  consequently,  if  plaintiff  has  any  cause  of  action  at  all,  it 
is  one  for  breach  of  the  contract  and  not  one  for  services  under  the  con 
tract.  But  appellant  fails  to  call  our  attention  to  any  declaration  or 
other  act  of  defendant  which  amounted  to  an  unequivocal  discharge  of 
the  plaintiff  from  further  employment.  To  be  sure  it  appears  that 
p]aintiff  was  prevented  from  working  at  all  during  the  period  covered 
by  the  present  suit,  by  the  defendant,  but  it  is  one  thing  to  prevent  a 
party  from  laboring  and  quite  a  different  thing  to  discharge  him  from 
all  further  employment. 

In  the  former  instance  the  contract  need  not  be  treated  as  broken, 
but  the  party,  though  he  has  performed  no  labor  under  it,  may  sue  on 
the  contract  and  recover  the  agreed  compensation.  In  the  latter  in 
stance  there  is  an  unequivocal  breach  of  the  contract  to  employ  for  a 
specified  time  by  the  employer,  and  the  suit  should  be  as  for  a  breach 
of  the  agreement  to  employ.  All  of  which  is  clearly  laid  down  and  il 
lustrated  in  Stone  v.  Bancroft,  supra.  The  same  principle  is  stated  in 
Dingley  v.  Oler,  117  U.  S.  490.  The  plaintiff  testified  that  he  was  not 
discharged  and  stated  what  was  said  and  done  to  prevent  him  from 
working,  and  on  his  evidence  the  jury  based  their  verdict  in  his  favor, 
and  thus  it  was  impliedly  found  that  he  was  not  discharged,  and  we 
think  the  evidence  warranted  the  finding.  If  the  defendant  desired  to 
discharge  the  plaintiff  he  should  have  told  him  that  he  was  discharged. 


698  CALIFORNIA  DECISIONS. 

Instead  of  doing  this  he  seems  to  have  adopted  a  course  by  which  if  he 
was  sued  for  a  breach  of  the  contract  he  might  plausibly  say,  ' '  You  have 
mistaken  your  remedy.  I  did  not  discharge  you";  and  if  on  the  other 
hand  the  suit  should  be  on  the  contract  he  might  say,  ' '  You  should  have 
sued  as  for  a  breach  of  the  contract  for  I  discharged  you  and  thus 
broke  my  agreement."  Where  it  is  admitted  that  the  plaintiff  is  en 
titled  to  recover  in  some  form  of  action  this  court  will  not  be  overnice  in 
its  distinctions  as  to  what  form  should  be  pursued.  On  the  circum 
stances  presented  we  decline  to  interfere  with  the  judgment  on  any 
theory  of  mistake  as  to  remedy.  The  law  touching  this  point  is  clearly 
laid  down  in  the  former  case  of  Stone  v.  Bancroft,  supra,  and  need  not 
be  again  repeated.  The  evidence  showing  that  there  was  no  discharge 
is  fully  as  strong  here  as  it  was  in  that  case  and  there  it  was  conceded 
by  appellant  that  there  was  no  discharge,  but  it  was  contended  that 
Stone  had  withdrawn  from  the  contract  and  abandoned  the  employment. 

2.  The  evidence  tended  to  show  that  plaintiff,  during  a  small  portion 
of  the  period  covered  by  the  suit,  assisted  another  in  the  publication 
and  sale  of  a  medical  book  entitled  "Femina,"  and  it  is  contended  that 
this  was  a  violation  of  plaintiff's  contract  "to  devote  his  whole  time" 
to  the  historical  works  of  Bancroft.     It  appears  that  Stone  was  at  all 
times  ready  and  willing  to  fully  perform  his  contract  with  Bancroft  but 
was  prevented  from  so  doing.    He  was  left  then  either  to  remain  idle  or 
work  at  something  else.    This  work  did  not  ' '  interfere  with  his  efforts 
on  behalf  of  the  said  History  Company. ' '    Bancroft  was  in  no  way  in 
jured  by  Stone  working  at  something  else  when  he*  was  not  permitted 
to  work  under  the  contract,  and  cannot  be  heard  to  complain  thereat. 
What  plaintiff  did  in  connection  with  the  "Femina"  publication  did 
not,  therefore,  constitute  a  substantial  breach  of  his  contract  with  appel 
lant,  and  the  jury  were  warranted  in  their  conclusion  to  that  effect. 
Herman  v.  Littlefield,  109  Cal.  430. )    This  same  question,  on  practically 
the  same  evidence,  was  passed  on  adversely  to  appellant's  contention  in 
the  former  case  of  Stone  v.  Bancroft,  supra. 

3.  Appellant's  next  contention  is  that  by  the  terms  of  the  contract 
plaintiff  could  recover  nothing  until  the  expiration  of  the  ten  years '  ser 
vice  contemplated  by  said  contract.     There  is  no  merit  in  this  conten 
tion.    This  was  a  contract  of  hiring  for  the  period  of  ten  years  with  com 
pensation  fixed  at  $350  per  month  and  that  amount  was  due  and  owing 
at  the  conclusion  of  each  month's  service.    There  is  nothing  in  the  con 
tract  to  indicate  an  intention  as  to  the  times  of  payment,  otherwise  than 
as  above  stated. 

4.  Appellant's  last  contention  is  based  on  section  1980  of  the  Civil 
Code,  which  provides  as  follows:    "A  contract  to  render  personal  ser 
vice,  other  than  a  contract  of  apprenticeship,  as  provided  in  the  chapter 
on  Master  and  Servant,  cannot  be  enforced  as  against  the  employee  be 
yond  the  term  of  two  years  from  the  commencement  of  service  under  it ; 
but  if  the  employee  voluntarily  continues  his  service  under  it  beyond 
that  time,  the  contract  may  be  referred  to  as  affording  a  presumptive 
measure  of  the  compensation." 

There  is  nothing  in  this  contention  because  (1)  the  statute  was  not 


CALIFORNIA  DECISIONS.  699 

pleaded;    (2)  it  would  not  have  been  a  bar  or  defense  to  this  action 
if  it  had  been  pleaded. 

The  judgment  and  order  should  be  affirmed. 

GRAY,  C. 
L"We  concur: 

HAYNES,  C. 
COOPER,  C. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  and  or 
der  are  affirmed. 

GAROUTTE,  J. 
HARRISON,  J. 
VAN  DYKE,  J. 


Service  of  a  copy  of  the  within  is  hereby  admitted 
this day  of  A.  D.  1896. 


